French Employment law - Non-payment of overtime and non-compliance with the safety obligation = Prise d’acte qualified as dismissal without cause of an executive assistant of Rituals Cosmetics France (CPH Paris 4/06/2024, def)

The parties did not appeal the tie-breaking judgment.

The executive assistant of Rituals Cosmetics acknowledged the termination for non-payment of overtime, non-compliance with daily and weekly working hours, non-compliance with rest periods, non-compliance with the safety obligation.

The deciding judge rules that the acknowledgment produces the effects of a dismissal without cause.

The executive assistant is awarded 47,000 euros gross.

The tie-breaking judgment is final.

2.3.1) On salary arrears for overtime

In this case, Mrs. X is requesting back pay for 51.96 hours of unpaid structural overtime and for 438.11 hours of unpaid overtime for the period from October 2018 to March 2021.

Any hour worked beyond the legal weekly duration or the duration considered equivalent is an overtime hour that gives rise to a salary increase or, where applicable, to equivalent compensatory rest. Overtime is that which is worked at the request of the employer, or at least with his implicit agreement, beyond the legal working time as it results from Article L: 3121-27 of the Labor Code.

In the event of a dispute relating to the existence or number of hours worked, pursuant to Article L. 3171-4 of the Labor Code, it is up to the employee to present, in support of his claim, sufficiently precise evidence regarding the unpaid hours that he claims to have worked in order to allow the employer, who ensures the monitoring of the hours worked, to respond usefully by producing his own evidence. The judge forms his opinion by taking into account all of these elements in light of the requirements recalled in the legal and regulatory provisions.

2.3.2) On the so-called structural overtime.

Mrs. X is requesting a back pay of 1,319.78 euros for the overtime she worked between the 35th hour and the 39th hour, as well as payment of the related paid leave.

In support of her claim, she argues that the pay slips for the months of October, November and December 2018 indicate a working time of 151.68 hours for a salary of 3,083 euros, whereas she worked 169 hours per month.

The defendant company states that the three pay slips for the months of 2018 contain a material error on the working time, which was corrected as of 1 January 2019 by including two separate lines for the first 151.67 hours at a rate of 18.24 euros and for 17.77 overtime hours at an increased rate of 20.23 euros.

It follows from Article 6 of the employment contract that the parties agreed on a gross annual flat-rate remuneration of 37,000 euros for a schedule of 169 hours per month, or 3,083.33 euros for 39 hours per week.

Examination of the pay slips reveals that the company paid Mrs. X a salary of 3,083.33 euros in October, November and December 2018, corresponding to the agreed salary, such that the overtime hours "described as structural" were fully remunerated.

The employee's request for back pay will be dismissed.

On the 438.11 hours of overtime

Ms. X claims that the employer owes the sum of 11,669.67 euros in back pay for the 438.11 hours of overtime that she claims to have worked from October 2018 to March 2021, in addition to the sum of 1,166.96 euros in paid leave relating thereto.

In support of her claim, she produces the daily and weekly statements of her working hours, indicating her arrival and departure times from the company, as well as her break times for the period in question.

These statements are supplemented by numerous email exchanges between the employee and her employer from October 1, 2018 to March 28, 2021.

Thus, Mrs. X provides sufficiently precise evidence regarding the unpaid hours she claims to have worked in order to allow the employer, who monitors the hours worked, to respond usefully by producing its own evidence.

The defendant company alleges that the employee never requested prior authorization from her manager to work overtime, in accordance with the provisions of Article S of the employment contract, that the evidence provided by the employee is insufficiently convincing and that the employee's workload did not justify the work of overtime. However, it does not provide any evidence regarding the schedules and the calculation of working hours, while it is up to it to establish the evidence necessary to calculate the working time.

According to the statements produced, the employee generally started her working days at 9:30 a.m. and finished her day most often after 7:00 p.m., and sometimes late in the evening, with a one-hour break per day. The email exchanges produced by the employee attest that

work, that she sent emails to her contacts outside of normal working hours, particularly in the evening.

In light of these elements, the Council notes that Mrs. X worked overtime to a lesser extent than requested, the Council limiting itself to retaining the 108 days for which emails are produced in support of the hours mentioned in the tables produced by the employee.

The claim for payment of overtime should be partially upheld and RITUALS COSMETICS FRANCE ordered to pay the sum of EUR 5,000.00 gross for overtime and to pay the sum of EUR 500.00 gross for the related paid leave.

To read all the Article, please click on the link below

https://www.legavox.fr/blog/frederic-chhum-avocats/prise-acte-pour-paiement-heures-35891.htm

Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

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