Newsletter No. 91 – July 2016

An employee had been dismissed after denouncing to the Prosecutor in the Courts of first instance the acts of a member of the Board of directors and the Chairman of the association within which he was working. The facts occurred prior to the law of 6 December 2013 which now forbids such a dismissal; therefore the judges ruling on the merits decided not to cancel the dismissal, to the extent that there can be no nullity without any text providing for it. The Supreme Court reverses this position, on the ground of Article 10 § 1 of the ECHR: “due to the subsequent breach of the freedom of expression, especially of the right of employees to report behaviours of illicit acts noticed at their place of work, dismissal of an employee notified for having reported or testified with good faith to facts which they were aware of in the course of their duties and which, if constituted, would be such as to characterize criminal offenses, is null and void” (Supreme Court, Lab. Section, 30 June 2016, n°15-20.557).

The Supreme Court continues here the extension of their new case law according to which “the existence of a prejudice and the assessment of such prejudice fall within the exclusive scope of jurisdiction of the judges ruling on the merits“. An employee seeking to obtain damages as a result of the inobservance of the dismissal procedure must prove the prejudice which he claims having suffered (Supreme Court, Lab. Section, 30 June 2016, n°15-16.066).

In this case, a court of appeal had condemned an employer to pay to an employee an indemnity for the recharacterization of the fixed-term employment contract into an indefinite-term employment contract, on the ground that the letter confirming the hiring conditions did not bear all the mandatory requirements related to the fixed-term employment contract as provided for by Article L. 1242-12 of the Labour Code. However, according to the Supreme Court, these requirements “do not apply to a hiring promise”. The principle whereby the hiring promise equals an employment contract applies only to the indefinite-term employment contract (Supreme Court, Lab. Section, 6 July 2016, n°15-11.138).

Pursuant to Article L. 1233-57-5 of the Labour Code, “before the transmission of the request of the validation or approval [of the collective dismissal plan], any claim aiming at an order for the employer to provide information relating to the ongoing procedure or to comply with a procedure rule provided for by the legal provisions, the industry-wide collective bargaining agreements or an in-house collective bargaining agreement, is sent to the administrative authority, who makes a decision within five days “. Article D. 1233-12 of the same code adds that such request for an order can be sent by the works council or, failing this, by the staff delegates. The Supreme Administrative Court indicates that “when its consultation is required and in the course of the information and consultation prior to the transmission of a request for validation or approval of a [collective dismissal plan], the Hygiene and Safety Committee can submit to the administrative authority any claim for breach of the exercise of its mission […] by formulating […] a request for an order” (Administrative Supreme Court, 29 June 2016, n°386.581).

The Supreme Court here confirms its Molex case law (Supreme Court, Lab. Section,, 2 July 2014, n°13-15.208), whereby “except in the case of a subordination link, a company belonging to a group can be considered as a co-employer towards the staff employed by another company only if there is, beyond the necessary coordination of economic actions between companies belonging to a same group and the economic domination that this membership can trigger, a confusion of interests, activities and direction, which results in an interference in the economic and social management of the latter” (Supreme Court, Lab. Section, 6 July 2016, n°14-27.266).

A trade union of Air France had called the employees not to sign any work forms, while ensuring “the realization of the tasks only linked to the job in accordance with professional standards”. It was condemned to pay the company amounts for loss of productive hours and for the recourse to the subcontracting. The Supreme Court approves the judges ruling on the merits for considering this strike as illicit, on the ground that “strike is the collective and concerted work stoppage with a view to sustain professional claims; therefore, it cannot be limited to a specific obligation of the employment contract” (Supreme Court, Lab. Section, 11 July 2016, n°14-14.226).

The Ministry of Justice indicates that the appeals made in labour law proceedings as from the 1^st of August 2016 do not fall within the scope of Article 1635 bis of the Tax Code which creates a tax of € 225 (Circular of the Minister of Justice of 5 July 2016).

 

A decree clarifies the deadlines during which the various staff representation bodies provide their opinion, together with the operating methods of the Hygiene and Safety Committee. It also defines the content of the quarterly information that the employer must provide the works council with (D. n°2016-868 of 29 June 2016, Official Journal of 30 June 2016).

A decree, certain provisions of which will come into force on the 1^st of January 2017, reinforces the justification of the decisions of the bodies collecting the contributions, especially with respect to the decision of the Commission of amicable recourse and the summons. The provisions of the policy applying to the controlled contributor become mandatory and the deadline to lodge a recourse with the Commission of amicable recourse is extended from one to two months (D. n°2016-941 of 8 July 2016, Official Journal of 10 July).

The lists of trade defensors are drawn up and held available for the public by the labour authorities upon proposition of the employers’ and employees’ trade unions. They are notably appointed depending on their experience and knowledge in labour law. The trade defensors carry out their missions on a free basis. Such lists are revised every four years (D. n°2016-975 of 18 July 2016, Official Journal of 20 July).