Modification Of The Employment Contract1
LexInter | October 20, 2018 | 0 Comments

Modification Of The Employment Contract1

THE JURISPRUDENTIAL DISTINCTION

CONTRACTUAL SPHERE FIELD OF THE AUTHORITY OF THE COMPANY MANAGER

MODIFICATIONS OF AN ESSENTIAL ELEMENT OF THE EMPLOYMENT CONTRACT

Article L 321-1 of the Labor Code

DEFENSE OF THE ARMATURE OF THE CONTRACT
CONTRACTUAL REMUNERATION EMPLOYEE QUALIFICATION WORKPLACE WORKING DURATION AND HOURS

CONTRACTUAL REMUNERATION

MODIFICATION OF CONTRACTUAL REMUNERATION j

Cass. Soc, May 19, 1998  the contractual remuneration of the employee constitutes an element of the employment contract which cannot be modified, even in a minimal way, without his agreement; that the same applies to the method of remuneration provided for in the contract, it does not matter whether the employer claims that the new method would be more advantageous  Having regard to article 1134 of the Civil Code  ;
Cass. soc. January 28, 1998 the method of remuneration of an employee constitutes an element of the employment contract which cannot be modified without his agreement, it does not matter whether the employer claims that the new method would be more advantageous;
Soc, October 20, 1998 in the event that the employee’s remuneration results exclusively from the employer’s unilateral use or commitment, the regular denunciation of this use or of the unilateral commitment does not allow the employer to unilaterally fix the wages; that this must then result from a contractual agreement, failing which it is up to the judge to rule; Considering article L.121-1 of the Labor Code , together article 1134 of the Civil Code  ;
Soc, July 3, 2001 the Court of Appeal, which found that the remuneration of an employee despite the increase in his hierarchical coefficient had not increased on the grounds that his “individualization” coefficient, determined according to his professional value and quality of the work provided, had been reduced correlatively by a unilateral decision of the employer, did not draw the legal consequences of its findings, resulting in a modification of the employment contract of the person concerned,  Having regard to article 1134 of the Civil Code  ;

VARIABLE REMUNERATION CLAUSE

Soc. July 2, 2002 a clause in the employment contract may provide for a variation in the employee’s remuneration as long as it is based on objective elements beyond the employer’s control, does not place the business risk on the employee and does not place the business risk on the employee. does not have the effect of reducing the remuneration below the legal and contractual minima;

EMPLOYEE QUALIFICATION AND TASKS

MODIFICATION OF EMPLOYEE TASKS

Cass.soc. July 10, 2002  the employee’s refusal to perform a service unrelated to the activity for which he had been hired, could not be attributed to him at fault,
Cass.soc. December 16, 1998 the employer’s proposal transformed the employee’s responsibilities, and added a non-competition clause to the contract, which doubly characterized the modification of the employment contract,  Having regard to article 1134 of the Civil Code  ;
Cass. soc. January 20, 1999 the responsibility for the training and supervision of managers, which fell to the sole employee, was shared between three people, which had the consequences of depriving her of all control in the management of files and had resulted in a major change the responsibilities of Mrs. Garrigou by a gradual abolition of her service and of the specific functions which made her interest; that she was able to decide that the employer had modified the employee’s employment contract and that the dismissal, based on the insubordination of the employee resulting from the refusal of this modification and the referral to the industrial tribunal, no. had no cause 
Cass. soc. May 26, 1998 The court of appeal noted that when hiring the company Sogéa had refused to include in Mr. Grasso’s employment contract the duties of a driver and that he had only been hired in his capacity. of ripper for which he was paid; that she could, therefore, decide that by wanting to impose Mr. Grasso in 1992 to exercise the tasks of driver, his employer intended him to impose a modification of his employment contract that he was entitled to refuse;
Cass. soc. February 02, 1999 the court of appeal ruled exactly that the employer, who made the employee perform tasks that did not fall within her qualification and unrelated to the activity for which she had been hired, could not blame her for the errors made in her job 
Cass. soc. May 10, 1999 the employer, within the framework of his power of direction, can change the working conditions of an employee; that the circumstance of the task given to an employee is different from that which he carried out previously, as soon as it corresponds to his qualification, does not characterize a modification of the employment contract;

That by ruling as it did, and while it does not hold that the measure taken by the employer would correspond to prohibited discrimination or to an unjustified sanction, the court of appeal violated the aforementioned text

Having regard to article 1134 of the Civil Code  ;
Cass soc. April 8, 1998 the Court of Appeal ruled exactly that the employer could not require Mr. Lepesteur, hired as a VRP, to perform additional tasks consisting of feasibility studies, monitoring and acceptance of worksites, which tended to become its main activity to the detriment of its commercial representation mission

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WORKPLACE

CHANGING THE WORKPLACE

Cass. soc. January 22, 2003   the occasional displacement imposed on an employee outside the geographical sector where he usually works does not constitute a modification of his employment contract when the mission is justified by the interests of the company and the specific nature of the functions performed by the employee implies a certain geographic mobility on his part,  Having regard to articles L. 122-14-3 of the Labor Code and 1134 of the Civil Code;
Cass. soc. November 12, 2002    the change of place of work imposed on the employee constituted a modification of her employment contract Considering Articles L. 122-14-2 , L. 122-14-3 and L. 122-40 of the Labor Code;
Cass. soc. July 10, 2002  the transfer took place in the same geographical sector so that it did not constitute a modification of the contract but consisted of a simple change of the working conditions which was imposed on the employee Having regard to article L 122-4 of the Labor Code ;
Cass. soc. May 4, 1999    by ruling as it did, without examining whether the place of work to which Mr. Hxxxx was assigned was located in a geographical sector different from the one where he previously worked and whether, therefore, the move constituted a modification of the employment contract , the court of appeal did not give a legal basis for its decision Having regard to articles L. 122-6 , L. 122-8 and L. 122-9 of the Labor Code
Cass. soc. March 21, 2000   the court of appeal, which adhered to the reasons set out in the dismissal letter, was able to decide that the one-off mission to Germany requested from Ms Mxxx, who had been hired as an executive consultant, given her knowledge in German, and who was contractually bound to stay in the provinces, did not constitute a modification of his employment contract 

MOBILITY CLAUSE 

Soc, January 10, 2001 the industrial tribunal found that the employee was unable in the absence of public transport to go at the scheduled time to the new place of work which was imposed on her; that he was able to decide, although the contract included a mobility clause, that the employer, failing to provide him with the means to get to his place of work, had abused the right he holds from the exercise of its managerial power and thus legally justified its decision 

WORKING DURATION AND HOURS

Cass. soc July 18, 2001 in the absence of an express contractual clause setting a daily working schedule, the change in the schedule of the working day of a part-time employee is in principle the responsibility of the employer, and, on the other hand, that the fact of entrusting his employee a different task corresponding to his qualification does not constitute a modification of the employment contract;
Cass.soc. July 11, 2001 the court of appeal, after noting that the employment contract specified “your working hours will be in accordance with your request from Monday to Thursday 8:30 am to 5 pm and Friday 8:30 am to 4 pm”, has exactly decided that the schedules thus expressly specified and, at the request of the employee, accepted by the employer, were of a contractual nature; from where it follows that she decided exactly that the modification of the employee’s working hours constituted a modification of her employment contract that she was entitled to refuse
Cass. soc. February 22, 2000 the change of schedule consisting in a new distribution of the schedule within the day, while the working hours and the remuneration remain the same, constitutes a simple change of the working conditions falling under the managerial power of the head of the company and not a modification of the employment contract;

Whereas, then, the Court of Appeal found that the change of schedule, motivated by the reorganization of the medical practice whose staff had gone from 2 to 3 secretaries, was not of a discriminatory nature

Cass. soc. June 4, 2002 Whereas, however, first of all, the distribution of the duration of part-time work, as it must be provided for, in application of Article L. 212-4-3 of the Labor Code, constitutes an element of the contract which cannot be modified without the agreement of the employee;

Whereas, then, a clause in the contract cannot validly allow the employer to modify the agreed schedule by notifying the employee at least 7 days in advance except on the double condition, on the one hand, of the determination by the contract of the possible variation, on the other hand, of the statement of the cases in which this modification may occur;

Having regard to article L. 212-4-3 of the Labor Code, in its version then in force, together with article 1134 of the Civil Code;

CHANGING FROM A FIXED SCHEDULE TO A VARIABLE SCHEDULE

TIME VARIATION CLAUSE

CONTRACTUAL SETTING OF TIMES

Soc, July 11, 2001 the schedules thus expressly specified and, at the employee’s request, accepted by the employer, were of a contractual nature; from where it follows that she decided exactly that the modification of the employee’s working hours constituted a modification of her employment contract that she was entitled to refuse 

CHANGING FROM A DAY SCHEDULE TO A NIGHT SCHEDULE

Cass. soc. December 18, 2001 under the terms of Article L. 213-2 of the Labor Code, “any work between 10 p.m. and 5 a.m. is considered night work”; that it results from the judgment that the employer intended to substitute for a work schedule of 5 a.m. to 1 p.m. work from 4 p.m. to 0 a.m., so that he had to obtain the employee’s agreement for this modification of the employment contract, notwithstanding the clause of working hours variability which could not have the effect of allowing the employer to impose such a modification;

 

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