French employment law - Contractual clause of prior mediation: it does not prevent the employee from directly seizing the conseil de prud'hommes (c. cass. June 14th 2022)

In an opinion of June 14th, 2022 (n° 22-70.004), the Court of Cassation affirms, , that the parties to the employment contract have the possibility of seizing the Labor Court directly in the presence of a clause of the employment contract work which establishes a preliminary mediation procedure (https://www.courdecassation.fr/decision/62a82456bb0a8105e5518a06#:~:text=%C2%AB%20La%20convention%20instituant%20un%20pr%C3%A9liminaire,ait%20%C3%A9t%C3%A9%20mise%20en%20oeuvre%20%3F%20%C2%BB&text=2) .

The context of the annotated opinion (1) makes it possible to understand its content (2) before considering the possible practical lessons that could be induced in the particular case of salaried clerks of commercial courts (3).

By this opinion of June 14th, 2022, the Court of Cassation recalls and maintains its position adopted in 2012 while applying it, this time, to mediation clauses.

In this case, the Colmar Court of Appeal questioned the social chamber of the Court of Cassation on the procedural impact of the mediation/conciliation clauses in the following terms:

"Is the agreement instituting a compulsory preliminary mediation binding on the trial judge when the parties invoke it and must it therefore result in the inadmissibility of a request made without the mediation procedure having been implemented? »

Without directly answering the question put to it, the Social Chamber repeats almost identically the expected principle of the 2012 judgment by replacing the term “conciliation” with that of “mediation”:

"Because of the existence in employment tribunal matters of a preliminary and compulsory conciliation procedure, a clause of the employment contract which institutes a procedure of preliminary mediation in the event of a dispute arising on the occasion of this contract does not prevent not the parties to refer their dispute directly to the industrial tribunal judge”.

What about the procedure for salaried clerks of the commercial courts of article R. 743-139-12 of the commercial code

What is the scope of this opinion concerning the specific provisions applicable to salaried clerks of commercial courts pursuant to Article R. 743-139-12 of the Commercial Code.

Article R. 743-139-12 of the Commercial Code provides for the obligation to refer to the President of the National Council of Commercial Court Clerks as mediator of any dispute arising from the execution of the contract of work.

Is this mediation procedure combined with that of conciliation before the conciliation office of the Labor Court?

The scope of the opinion of June 14, 2022 cannot therefore, in our opinion, be extended to salaried clerks of the Commercial Court for whom an independent mediation procedure has been created.

Without legal and jurisprudential clarification on this point, the question could however be the subject of a new request for an opinion, the issue being the reduction of procedural delays while respecting the employee's right to take legal action.

Sources:

Cass. soc., opinion, June 14th, 2022, no. 22-70.004, FS-B: FS-B ). https://www.courdecassation.fr/decision/62a82456bb0a8105e5518a06

Cass. soc., 5 dec. 2012, n°11-20.004, Bull. 2012, V, no. 326: D. 2012. 2969; Dr. soc., 2013, p. 178, note D. BOULMIER; RDT, 2103, p. 124, E. SERVERIN; (https://www.legifrance.gouv.fr/juri/id/JURITEXT000026743296?isSuggest=true)

Court of Cassation, Monthly Labor Law, No. 38, Dec. 2012, p. 31-32: https://www.courdecassation.fr/files/files/Publications/Bulletin%20d%27information%20du%20droit%20du%20travail/2012/bulletin_travail_12-2012.pdf)

J. ICARD, “The judge and the conventional methods of settling labor disputes”, Dr. soc., 2017, p. 33.

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

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