The conflicts that animate the prud’hommes, reflect each day on our social history. The hearing in the office of the court shall be public. Regularly, a journalist for The Express purpose of attending the debates.
Paris (conseil des prud’hommes, section coaching, 2 August 2018 14 pm
The president is surrounded by a councillor and two councillors. In the Face of them, three lawyers. One represents Thomas (1), the other two the representative liquidator of a company which is bankrupt and the AGS, the system of wage guarantee, which pay any wage claims.
The president : We will check that your requests are the same as those that have been filed…
The lawyer Thomas : I hope that the commission recognizes that my client has a contract of employment is apparent. As a result, I asked him to fix the liability of the company 2009 eur statutory severance pay, 3386,07 allowance of paid leave, 10 465 with pay in lieu of notice and 1046,50 euros of paid leave related, 2093 euros of salary for a few days in August 2017 and 209,30 € of paid leave related to 5000 euros in damages and interest for delayed provision of documents to the end of the contract, and to order the disclosure of documents of the end of the contract, the balance of any account and the certificate of employment.
The president : This was a company of what ?
The lawyer of the representative : Decoration and design advice, landscaping and interior design for companies.
The president : We listen to you.
The lawyer of Thomas : The January 11, 2016, my client has been engaged in full-time permanent contracts, as commercial director with a salary of 3 488,41 euros. The liquidation of the company on 3 August 2017. On 4 August, my client is summoned to an interview prior to dismissal which is the 11. On August 16, it is dismissed for economic reasons, “subject to the quality of your employee”.
The president : Your client was hired on January 11, 2016 with a written contract of employment ?
The lawyer of Thomas : Yes, and you have the same five amendments to the contract of work.
The president : Your client has payroll records and… everything that it takes ?
The lawyer of Thomas : Yes.
The president : Then ?
The lawyer, Thomas : Liquidation of the company, reclassification impossible, and termination of employment “subject”. My client can not be compensated by the AGS because the documents have not been transmitted.
The president : The GSA is…
The lawyer of Thomas : The liquidator has refused to acknowledge to my client, its employees, hence our referral to tribunals. We ask you first to recognize him as an employee. The existence of a contract of employment made to assume the status of an employee. In this case, my client has a permanent contract, endorsements, it is mentioned as employed in the folder of liquidation with the commercial court.
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I was told that it would be the husband of the manager. This has no impact. It also tells me that he would have been the manager of other companies. And then ? The companies in question no longer exist, and nothing prevents her from being employed elsewhere.
The president : We will listen to your critic.
The lawyer of attorney : Before anything else, I would like to clarify that the company in which worked was your client was registered by the father of this one in 2014. On June 30, 2017, there is a cessation of payments. The manager gave a mandate to the commercial director, claimed your client, to defend the termination payment to the tribunal of commerce.
he said He is an employee and owns 60% of shares in the company with his wife through a SCI, of which he is the manager since march 31, 2012. This gentleman, who was working part-time, will suddenly have a full-time basis, his employment agreement was amended on march 1, 2017, the termination payment is made three months later.
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In addition, he has been at the forefront of other companies, all of which have been liquidated. Taking into account all these elements, which were discovered in the course of the operations of liquidation, and that the AGS had alerted the mandateur liquidator of suspicion of fraud, we have decided not to recognize the quality of employee of sir.
The president : What other elements do you have to continue in this direction ?
The lawyer of the representative : We have asked about his relationship of subordination. He contented himself to respond to us that it is offended from this request. Clearly, he is the manager of the company. Given the suspicion of fraud, relatively intelligent, it pretends to be an employee. His employment contract does not make him an employee. If you have to have a different assessment, remember that it is the same process that the filing of the application for winding up.
The president : On the requests for paid leave ?
The lawyer of the agent : When he asked to take ? That he has rejected ? How proves he that he is at the disposal of the employer ? And on the 5000 euros in damages and interests, how to justify a prejudice ?
The lawyer of Thomas : The liquidator has refused to be submitted to all droits my client, including payment of the salary between 1 and 17 August. He has not been able to register with Pole emploi, you find that there is no prejudice ?
The president : What said the representative of the AGS ?
The lawyer of the AGS : The AGS denies totally the employment contract. Of the creation of his multiple companies as at the termination payment, he can not claim the status of an employee.
14: 25. The chairman : The debate is closed.
Verdict, on September 21. Thomas is dismissed.
the Manager and employee : what the law says
The council of prud’hommes considered that Thomas could not be regarded as an employee. In fact, he has refused to demonstrate his relationship of subordination in the company and owned 60 % of its shares via a SCI with his wife.
In addition, despite a signed employment contract in good and due form, several endorsements and wage slips that are worth a “presumption of wage-earning”, the representative liquidator is going to bring evidence to the contrary. He described Thomas as a leader, which does not have a social mandate, but will still exert a real power of management in the company.
The article l. 241-9 of the code of commerce provides that is considered to be the manager in fact “any person who, directly or through a third party, will, in fact, exercised the management of a limited liability company under the guise or in place of his manager legal”.
In a case nearly similar, and of recent, the Court of cassation (27 September 2017, appeal n°16-17619), ruled to the detriment of the alleged employee : it dismissed the claims of arrears of salary of the wife of the manager who held the position of commercial secretary, believing that it did not show “relationship of subordination” and “had acted as de facto managers”.
(1) The name was changed.
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Finally, in spite of the contract of employment, “the judge is not bound by the qualification of the contract”, recalls the court of cassation (Newsletter of the labour law of 2008, “The distinction between self-employment/wage labour, state case law”), “the existence of a salaried employment relationship depends on the conditions of fact in which is exercised the professional activity”. The doubt has not benefited at Thomas.
(1) The name was changed.