Newsletter No. 115 – July 2018

Article L. 3121-5 §1 of the Labor code, in its drafting applicable to the facts, provides that “an on-call duty period means a period during which the employee, without being at the permanent and immediate disposal of the employer, has the obligation to remain at his domicile or near it, in order to be able to step in to do some work for the company”.  According to the French Supreme Court (Cour de cassation), there is on-call duty, if a branch manager has “the obligation to remain permanently available via his mobile phone to address potential needs and be prepared to step in if required” (Cass. Soc., 12 July 2018, No. 17-13.029).

The Cour de cassation states here, as a reminder, “on the one hand, that the sole refusal by an employee of a modification of their employment contract does not constitute a real and serious cause for dismissal” and “on the other hand, that a termination resulting from the refusal by the employee of a modification of their employment contract proposed by the employer on a ground non-inherent to their person, constitutes a dismissal on economic grounds” (Cass. Soc., 11 July 2018, No. 17-12.747).

The administrative jurisdiction has in principle authority over litigation involving the dismissal of a protected employee.  In this case, where the decision of authorization of dismissal had been cancelled, a court of appeal had considered itself bound by the decision of the administrative jurisdiction and had, consequently, judged that the dismissal was without a real and serious cause.  The High jurisdiction quashes this decision.  According to it, the judicial judge should have sought to determine whether the dismissal was justified by a real and serious cause, because “the administrative court of appeal, which had only confirmed the judgement of the administrative tribunal on a ground of external legality related to the absence of an adversarial investigation by the labor inspector […] had not ruled on the ground according to which the facts the employee had been reproached with did not have a sufficient degree to justify their dismissal, so that this last ground could not constitute the necessary support of its decision” (Cass. Soc., 4 July 2018, No. 16-26.138).

The SNCF requested the cancellation of a decision of the CHSCT deciding to obtain an expert’s assessment, on the ground that no approved experts’ firm was expressly appointed.  According to the trial courts, approved by the Cour de cassation, “article L. 4614-13 of the Labor code then applicable does not conflict with the fact that the request for an expert’s assessment and the appointment of the expert be subject to two distinct decisions” (Cass. Soc., 5 July 2018, No. 17-13.306).

Referring to article 6§1 of the Convention for the protection of human rights and fundamental freedoms, the Cour de cassation decides that “a judge cannot base their decision exclusively or decisively on anonymous testimonies”.  In this case, the court of appeal had admitted that the infringement of the rights of the defense based on the anonymous nature of the testimonies collected by the management on ethics was not justified, because the employee had had the possibility to become aware thereof and to submit their observations.  The Cour de cassation disagrees and quashes this decision decisively based on the report of the management on ethics (Cass. Soc., 4 July 2018, No. 17-18.241).

The European Parliament and Council have modified the rules relating to the temporary posting of workers made in relation with a provision of services.  This new directive, which does not apply to the road-transport sector, now provides a maximum duration of 18 months (12 months which can be extended by 6 months).  Beyond this duration, temporarily posted employees shall be subject to all the national law rules of the State where they are temporarily posted (EU Dir. No. 2018/957 of 28 June 2018, OJEU of 9 July).

Applying the ordinances of 22 September 2017 reforming labor law, the metal industry sector has negotiated on these two reserved fields and has notably decided that:

– the waiting period is equal to a fourth of the term of the CDD which has expired, without exceeding 21 days;

– the works or operations contract is possible only in companies of 50 and more employees (National agreements of 29 June 2018).

Article L. 3123-5 of the Labor code provides in fine that “the severance pay and the retirement benefit of the employee who has been occupied on a full-time and a part-time basis within the same company are computed proportionally to the employment periods accomplished according to one and the other of these two modalities since the employee joined the company”.  Yet, according to Community case law, when an employee on a part-time parental leave is dismissed, the severance pay which is due to them must not be determined based on part-time.  The Cour de cassation decides to ask several preliminary questions to the CJEU, among which notably that of whether “clause 2, §4 and §6 of the directive 96/34/CE of the Council concerning the master agreement on parental leave […] must be so construed in that it conflicts with the application, to an employee on a part-time parental leave at the time of their dismissal, of a provision of national law such as article [L. 3123-5] of the Labor code (Cass. Soc., 11 July 2018, No. 16-27.825).