Generalized strike of the Prud'hommes

A wave of upheaval has been blowing for about eight months on the labor law and the tribunal prud'homale. Between the entry into force of the new renumbered Labor Code, the abolition of 62 Labor Councils and the Labor Market Modernization Act , of which I had reminded you of some provisions here and there , appeared a "small" decree, without consequence for the litigants but primordial for the prud'homaux advisers. This is the decree of June 16, 2008 relating to the compensation of labor court counselors .

First of all, it is the State that compensates labor councilors, except for employees who are absent during working hours for their labor-related activities. The latter then have a maintenance of their salary by their company. For others, the State pays them vacations, whose hourly rate has just been increased by the decree: from 6.05 euros to 7.10 euros (14.20 euros for employers who exercise their activity prud'homale between 8h and 18h).

There is, among us, no need to look further for the reason of the ridiculous amount of sums awarded to the employee who wins the case under Article 700 of the Code of Civil Procedure. Advocates have an unfortunate tendency to compare the incomparable, that is to say the time they devote to a file and the compensation they get from the one that the lawyers of the parties spend on the file. same file and the fees they have charged to their respective client (for reminder, my personal hourly rate is 125 euros HT and it is more than reasonable).

The good news of the decree is therefore the increase in the amount of compensation. There is also a very bad one.

This decree imposes on the advisers a time defined in advance on each file throughout the procedure:

  • Preparatory study of the file: one hour per hearing for the judging office and 30 minutes for an interlocutory : we can question here the interest of such a time granted since in general, counselors arrive at the hearing without absolutely knowing anything about the files that will be called. The parts are not communicated to them by the parties upstream and if they received their conclusions, they do not read them, in 99% of the cases, not at this stage
  • audience
  • Subsequent study: 1:30 per file for a trial office and 30 minutes for a referee: I refer you to my blog article on how this happens at the Labor Court of Paris . You will sometimes see that one hour and thirty minutes is already far too long to focus on a complex file
  • Deliberate
  • Writing: 30 minutes for the drafting of minutes, one hour for the drafting of an interim injunction and three for the drafting of a judgment, five in the case of a complex case (new article D. 1423-66 of labor Code)

Imagine the damage that such a text can cause. As many speakers had pointed out at the time, already the labor councilors are not legal professionals, if in addition, they are now forced to make decisions in such short times level of the study of the file that the drafting of the decision, the litigant will again be the only one to suffer.

The notion of "complex file" is precisely the one that posed the most problem. Not subject to any criteria, which determines if a file is complex or not and requires to spend more time?

You will ask me about the interest of asking such a question. Let's go back to the beginning. The "génialissime" idea of ​​the legislator (I am ironic there for those who would not have followed) is henceforth to compensate only the prud'homaux advisers only by reference to the maximum durations imposed by the decree. If this time is exceeded to process the file (ie zealous advisors), no compensation.

If the latter were able to "hold" for a few months with these new provisions, the revolt is booming and in recent weeks, several labor courts have decided to go on strike, for some for an unlimited period: this is the case from Lyon and Villefranche, for example. This is also the case of the Labor Court of Bobigny, since February 5, 2009, suspension of all hearings announced at the statutory hearing of re-entry.

The primary purpose of the decree was to avoid, according to the Government, the abuses found in a report made in 2005. It had indeed appeared that many councilors were being compensated on a large scale for fictitious working hours on cases. .

The reaction of the counselors, if it is comprehensive, is however awkward. The jurisdiction, especially in the Paris region, already works very badly. She really did not need to stand against the litigants, already badly chilled by the endless delays in handling cases.

Fortunately, at the moment, as far as I'm concerned, only Bobigny is affected, the other councils in the Paris region have not yet decided to go on strike.

But let's not hide our face. Councilors dig their own graves. This is a new step towards the announced disappearance of the Prud'homme Boards, in their present form.

Labour Law Justice

The conventional break raises many questions, as demonstrated by the multitude of comments I receive on this blog.

In order to answer them (and thus avoid me this work), the general direction of the work decided (again) to take a circular to bring new precisions.

The paper version of this document is available here .

Quickly, some interesting elements more particularly the visitors of the blog:Concerning the cases of conventional break contemplated during a period of suspension of the contract of employment, it is necessary to distinguish according to the cause of the suspension and the protection attached to the employee during this period:

  • either there is no particular protection of the employee and the conventional break can be envisaged. This is the case of parental leave for education, sabbatical leave, unpaid leave and traditional sick leave (for non-occupational illness).
  • or there is special protection of the employee prohibiting any mode of termination except dismissal (highly supervised) and the conventional break can not be considered. This is a resumption of the principles and jurisprudence applicable to negotiated departure options . This is the case of maternity leave and sick leave for an industrial accident or occupational disease, which follow rules of public order, which are therefore binding on the parties even though the latter would agree to proceed otherwise. .

With regard to cases of conventional disruption for economic reasons, the latter is excluded in the framework of forward-looking employment and skills management agreements (GPEC) or in the context of the implementation of the employment protection plans (PSE). .

For my part, I am very cautious in advising an employee to accept a conventional break rather than being fired economically in the event of an individual dismissal, unless he agrees to a substantial break-up fee.

Regarding certain specific categories of employees, the conventional break may or may not be considered:

  • in the event of an apprenticeship contract, the parties can not conclude a conventional break. The apprenticeship contract is not by nature a contract of indefinite duration, it can not be broken by a conventional break.
  • conventional rupture is open to maternal assistants.
  • salaried lawyers can benefit from the conventional break. The application for approval must be submitted to the competent DDTEFP. However, in case of litigation, it is before the President of the Bar that the dispute must be brought.
  • employers of former employees protected in various capacities, and wishing to conclude a conventional break, must respect the procedure reserved for protected employees, and use the appropriate form, this during the periods of protection defined by articles L. 2411-3 and following of the Labor Code.

As regards the withdrawal and investigation periods by the DDTE, the applicable rules are those of Articles 641 and 642 of the Code of Civil Procedure and R. 1231-1 of the Labor Code. The deadlines begin to run the next day, on the one hand from the date of the signature of the rupture agreement (for the withdrawal period), and, on the other hand, the day after the reception of the homologation request by the DDTE (for the instruction time). When these periods expire on a Saturday, Sunday or a holiday or holiday, they are extended until the next working day. Both the date of sending the application for approval to the DDTEFP once the withdrawal period has elapsed, than the agreed date of termination of the employment contract, must take into account the application of these rules of computation under penalty of refusal of homologation of the conventional rupture. I remind here the mishaps of an employee facing this problem.

As I have already mentioned on several occasions, the notion of notice does not apply to the conventional breach, as the signature of the form does not materialize on the date of termination, as can the letter of dismissal ( resignation or taking of act) accompanied by its sending to the other party. It is obviously necessary to set an expected date of rupture after the deadline mentioned above, otherwise the approval refused. However, there is no maximum deadline for the planned date of termination. Thus, by setting a date several months after the signature of the termination form, both parties to the employment contract find themselves in a situation similar to a notice, even if it has none of the legal characteristics. Indeed, it is the rules relating to the employment contract that continue to apply. The employee can therefore perfectly take paid leave during this period.

The date of termination being the date provided on the form and not the date of its signature, the agreement must take into account, in particular for the calculation of the severance pay, seniority and wages not yet due. With regard to the basis for calculating the specific contractual termination indemnity, as the parties can only enter the twelve salaries paid previously to the homologation application, it will be up to the employee to verify that his remuneration to come up to the actual date of termination does not affect the basis for calculating the agreed compensation.

The determination of the basis of calculation is identical to that used for the severance pay. As such, it is – the most favorable for the employee – the average of the last three or twelve gross monthly wages. However, the employee may have received exceptional sums (annual bonus, etc.) some of these months. In this case, as with the severance pay (Article R. 1234-4 of the Labor Code), it will be a question of reconstituting the average gross monthly salary perceived by prorating these sums. In the case of an employee with less than one year of seniority, the specific termination indemnity is due in proportion to the number of months of presence.

Most of these clarifications made sense, but in the future, hopefully, will reduce the relatively high percentage (for a procedure that should have been simple and fast) of refusals of homologation of conventional rupture. It should be noted that it is unfortunate that the DGT has not been a little more "wet" on the problem of determining the compensation to be taken into account when calculating the severance pay: legal compensation or conventional dismissal, problem mentioned

Conventional breakage: first balance sheet

I take advantage of being solicited by various stakeholders on the subject of the conventional break on which I am one of the lawyers who wrote the most on the Net to make an initial assessment on this measure.

I do not go back on my opinion on its real interest for employers and employees, which has not changed much in the past eight months.

I continue to think that the conventional break is adapted in a very small number of cases grouping the hypotheses where the employee does not have much to reproach his employer but does not bloom more in his work, feeling felt by his an employer who prefers to accept an amicable break rather than having to find a reason for dismissal.

In all other cases, this mode of rupture is absolutely not suitable. If the employee accuses his employer of proven shortcomings and the latter knows it and puts pressure on the employee by proposing a conventional break, the latter, by accepting it, shot himself in the foot, since as I have repeated many times, the employer's failure to fulfill his obligations, under certain conditions, allows the employee either to take note of the breach of his employment contract to his fault, or to seek the judicial termination of his contractbefore the Labor Court. These two actions when they are founded entail the requalification of the termination of dismissal without any real and serious cause, resulting in the payment of compensation, the amounts of which may be very substantial.I have a six-figure example of various court applications while the employer laughed in the face of her employee when she asked for a conventional break indemnity higher than the legal minimum.

The employer is also misguided on his side since his main objective, to avoid any future litigation with his employee, is not guaranteed by the conclusion of a conventional break. At most, he will benefit from the shortened court challenge period of one year, but this delay only concerns action challenging the breach itself, not the entire employment relationship.

To guard with a near certainty, he must conclude a transaction with the employee but I have already expressed also my reservations as to the validity of a conventional post-rupture transaction in my article on the contestation of the rupture conventional .

What about my practice of this new mode of rupture for eight months?

I have, in all and for all, made two conventional breaks, including one currently in progress. The choice of this mode of rupture, in these two cases, has never been imposed in the first place. It was rather like ultimate solution, for lack of better.

I continue day after day, every time I am seized of a folder that would start in conventional break to refer my customers to something else, in 99% of cases to profit.

The conventional break is therefore for me (and a large majority of lawyers) of a very low interest. It is a poorly designed tool that is not malleable and often has more problems than it solves.

Statistics at the national level are there to testify. Between August 2008, the date of creation of the conventional rupture and March 2009, nearly 67,000 breaks were approved for 88,470 applications, or nearly 25% refusal of approval, with situations often catastrophic for employees following the refusal: immediate resignation due to pressure from the employer, continuation of the employment relationship in a terrible climate, lack of "support" of the DDTE, which sends the employee to apply to the Labor Court to challenge the refusal of homologation …

It should be remembered that the main reasons for refusal of homologation often lie in the mistakes made by the employers themselves, either within the procedural deadlines to be complied with, or in the amount of the termination indemnity , or even more grossly, in the circumstances. of assistance of the parties, errors which only prejudices the employee and for which the employer can not be implicated, contrary to what happens in the context of a dismissal.

All this shows, if need be, that this mode of rupture clearly suffers from a flagrant lack of information from employers and employees, wishing to put an end to their relationship. It should also be kept in mind that this mode of disruption should not be implemented lightly without first consulting a legal professional.