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Analyze the case file to calculate my client’s overtime back-pay. We are going to challenge the validity of the day-rate agreement.
Reading the employment contract
Managerial employee — Journalism CBA
Reference salary: 3 100 €
Analyzing overtime hours
MOIS+25 %+50 %
Janvier 2618 h6 h
February ’2621 h9 h
Mars 2617 h5 h
EMPLOYEE
Julien Mercier
VALUATION
TOTAL0 €
CONTRIBUTIONS & TAX
EMPLOYER CONTRIBUTIONS
29 244 €
EMPLOYEE CONTRIBUTIONS
15 318 €
INCOME TAX
9 050 €
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This employee is claiming payment of his non-compete compensation from my client (the company); review the file and draft a memo on the risk for the company.
Reading the employment contract
Reading the pay slips
Reference salary: 3 988 €
Syntec CBA — min. consideration 1/3
Late waiver — unenforceable
CASE LAW
Cass. soc., 15 nov. 2006
No. 04-46.721 — token consideration
Cass. soc., 13 mars 2013
N° 11-21.150 — renonciation tardive
Cass. soc., 10 juill. 2002
No. 00-45.135 — validity conditions
TEXTES
Art. 18 — Syntec CBAL. 1121-1 C. trav.Art. 1103 C. civ.
RISK MEMO — NON-COMPETE CLAUSE
CONSIDERATION10 % of gross monthly salary
DURATION24 months
SCOPEAll of France
WAIVER15 days from termination
The employer’s late waiver of the clause is unenforceable against the employee
Cass. soc., 13.03.13. Above all, the 10 % contractual consideration is far below the minimum of 1/3 set by
Art. 18 — Syntec CBA: the clause is very likely void for token consideration
Cass. soc., 15.11.06 — 04-46.721.
Consequences: no contractual consideration is payable; damages remain owed for the period already observed (presumed harm); the employee is released going forward. Add the CBA to the file to check Article 18 in force on 13.05.24.
DIFFERENCE: 16 840 € IN FAVOUR OF SCENARIO A · 115 K€ NET TO EMPLOYEE IN BOTH CASES
Research the case law on the risk of the dismissal being void in this case and the amounts usually awarded
4 case-law searches running in parallel...
2 rulings find it void, the manager’s conduct being classified as moral harassment; 2 reject it. In this jurisdiction, a void dismissal is compensated on average at 8 months of salary for this length of service.
POURCass. soc., 15 nov. 2023N° 22-11.339↗VOID
POURCA Paris, 18 janv. 2024N° 21/06412↗8 MOIS
CONTRECA Versailles, 6 avr. 2023N° 21/02901↗LSCRS
CONTRECA Paris, 9 mars 2023N° 20/08114↗LSCRS
DOCUMENT
SCHEDULE
CA
LAW FIRM
C&A FRANCE
47 avenue Foch, 75116 Paris · Toque C0847
Submissions
before the Paris Employment Tribunal
It follows from the exhibits produced that the day-rate agreement is deprived of effect, the employer having organised no effective monitoring of the workload. The employee is therefore entitled to seek,
EXHIBIT 12 - RECORDSCASE LAW - 13.870
for the overtime hours worked, salary back-pay together with the related paid leave. Accordingly, the Court is asked to order the employer to pay the salary back-pay, and to order the delivery of corrected pay slips under penalty…
CA
LAW FIRM
C&A FRANCE
47 avenue Foch, 75116 Paris · Toque C0847
Schedule of exhibits produced
N°EXHIBIT NAME
I - CONTRACT
I-1Employment contract03/09/2019
I-2Day-rate agreement03/09/2019
I-3Amendment — remuneration12/01/2023
II - PAY & WORKING TIME
II-1Pay slips 2023-202631/05/2026
Think through our options to argue that the dismissal is void, the manager’s moral harassment being established. Look at what the case law says.