CHANGING WORKPLACE
LexInter | July 8, 2013 | 0 Comments

CHANGING WORKPLACE

DOCTRINAL BIBLIOGRAPHY JURISPRUDENTIAL BIBLIOGRAPHY
CHANGING THE WORKPLACE CHANGING THE WORKPLACE

FOREIGN MISSION

TRANSFER ABROAD OF THE EMPLOYEE OF AN INTERNATIONAL COMPANY  

INDICATIVE CHARACTER OF THE WORKPLACE MENTION 

SOCIAL PLAN AND WORKPLACE

 

Cass. soc. June 3, 2003  the a mention of the place of work in the employment contract value of information, unless it is stipulated by a clear and precise clause that the employee perform work exclusively in this place;   

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 exercised by the employee implies a certain geographical mobility on his part,  

 Cass. soc. November 12, 2002   the change of place of work imposed on the employee ( from Mandelieu to Fayence ) constituted a modification of her employment contract 

  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, 

Cass. soc. July 11, 2001   the implementation of a mobility clause does not entail any modification of the employment contract; that, even if the displacement of the employee has the character of a disciplinary measure, it does not constitute an abuse, since the employer can invoke a fault of the employee;

….. ruling as it did when it was up to him to verify whether the incriminated behavior of Mr. Barrande was faulty and if he justified his displacement, the court of appeal violated the aforementioned texts 

Cass. soc. May 4, 1999    , ruling as it did, without examining whether the workplace to which Mr Hczyszyn was assigned was located in a different geographical area from that where he had previously worked and whether, therefore, the move constituted a change in the employment contract, the Court of Appeal did not give a legal basis for its decision;

 

 

DOCTRINAL BIBLIOGRAPHY JURISPRUDENTIAL BIBLIOGRAPHY
MODIFICATION OF THE EMPLOYMENT CONTRACT CHANGING THE WORKPLACE

Judgment n ° 177 of January 22, 2003
Cour de cassation – Social Chamber
Cassation

Plaintiff (s) in cassation: Company hydraulic works and buildings (THB) SNC
Defendant (s) in cassation: Mr. Antoine X …

On the first plea, taken in its first branch:

Having regard to articles L. 122-14-3 of the Labor Code and 1134 of the Civil Code;

Whereas MX … was hired by the company Hydraulic works and buildings from February 22, 1982 as site manager; that his contract of indefinite duration did not include any mention of the place of work nor any mobility clause; that the employee was promoted principal site manager then master journeyman, having the status of framework; that having refused to go, for a period of two months, on a site away from the Toulouse region where he usually worked, he was dismissed for serious misconduct by letter of 22 September 1997; that contesting this measure, he seized the industrial tribunal to obtain the payment of various sums under the breach of the employment contract;

Whereas to say that the dismissal was not based on a serious fault or on a real and serious cause and to order the employer to pay the employee various sums for the termination of the employment contract, the court of appeal, after having recalled that his contract did not include a mobility clause and that, for the past ten years, his sector of activity was the region near Toulouse, retains that his assignment to a site located more than 300 kilometers from this city constituted for the interested party a change of geographical sector and thereby a modification of his employment contract requiring his consent;

That by so ruling, while the occasional travel 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 that the specificity of the functions performed by the employee implies on his part a certain geographic mobility , the Court of Appeal violated the aforementioned texts;

FOR THESE REASONS, and without there being any need to rule on the other branches of the first plea and the second plea:

BREAK AND CANCELED, in all its provisions, the judgment rendered on May 11, 2000, between the parties, by the Toulouse Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Bordeaux;

Chairman: M. Sargos
Rapporteur: M. Poisot, referendum adviser
General Advocate: M. Duplat
Lawyer (s): SCP Waquet, Farge and Hazan

Court of Cassation
Social Chamber

Public hearing of November 12, 2002 Partial annulment

Appeal number: 00-44685
Unpublished

President: M. RANSAC advisor

FRENCH REPUBLIC

 IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, SOCIAL CHAMBER, delivered the following judgment:

On the sole means:

Considering Articles L. 122-14-2 , L. 122-14-3 and L. 122-40 of the Labor Code;

Whereas Mrs. X …, engaged as from February 6, 1995 by the company Editions sports and motors as a press assistant, refused the transfer of his job from Mandelieu to Fayence; that not having joined his new place of work, she was dismissed on February 13, 1996 for serious misconduct;

Whereas to reject the employee’s claim for damages for dismissal without real and serious cause, the contested judgment retains that the modification of the employment contract comes from the management power of the employer who decided to transfer the activity of the company and that the dismissal based on the employee’s refusal of the consequences of this decision is not in itself illegitimate;

Whereas, however, motivated by a serious fault, consisting in the fact of having refused to join his new job, the dismissal was of a disciplinary nature; that it could be justified only by a fault of the employee;

That by ruling as it did, while noting that the change of place of work imposed on the employee constituted a modification of her employment contract and that the refusal of the interested party was not at fault, so that the disciplinary dismissal was deprived of cause, the court of appeal violated the texts referred to above;

FOR THESE REASONS :

BREAK AND CANCELED, but only in that it rejected the employee’s claim for damages for dismissal without real and serious cause, the judgment rendered on May 30, 2000, between the parties, by the Court of Appeal of ‘Aix en Provence ; returns, consequently, as for this, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Montpellier;

Condemns the Sports and Motors Publishing Company at the expense;

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the partially overturned judgment;

Thus done and judged by the Court of Cassation, Social Chamber, and pronounced by the president in his public hearing on November 12, two thousand and two.

Contested decision: Aix-en-Provence Court of Appeal (17th social chamber) 2000-05-30
Court of Cassation
Social Chamber

Public hearing of July 11, 2001 Cassation.

An indirect questioning of the Hotel Le Berry case law: the use of mobility clauses as a disciplinary measure, for a reversal of case law, n. Mouly, Jean, Droit social, n ° 11, 01/11/2002, pp. 955-958

N ° of appeal: 99-41574
Published in the bulletin

President: M. Waquet, acting senior advisor. .
Rapporteur: Ms. Nicoletis.
Advocate General: M. Kehrig.
Lawyer: SCP Peignot et Garreau.

FRENCH REPUBLIC

 IN THE NAME OF THE FRENCH PEOPLE

On the sole means:

Considering article 1134 of the Civil Code and L. 122-43 of the Labor Code;

Whereas Mr. Barrande, employee of the company Franfinance since 1983 as a contentious inspector, was appointed, on August 1, 1988, in charge of the regional litigation unit of Marseille; that he was dismissed on May 25, 1994 for having refused his transfer to the Bordeaux unit;

Whereas in order to say the dismissal of the employee devoid of real and serious cause, the contested judgment notes that the transfer of the employee to Bordeaux, which took place because of the poor results obtained by him in Marseille, constitutes a disciplinary measure which, necessarily affecting the employment contract by modifying his responsibilities, could be refused by him, and that the employer abused his powers by using for this purpose the mobility clause stipulated in the employment contract;

Whereas, however, the implementation of a mobility clause does not entail any modification of the employment contract; that, even if the displacement of the employee has the character of a disciplinary measure, it does not constitute an abuse, since the employer can invoke a fault of the employee;

That by ruling as it did while it belonged to him to verify whether the incriminated behavior of Mr. Barrande was faulty and if he justified his displacement, the Court of Appeal violated the aforementioned texts;

FOR THESE REASONS :

BREAK AND CANCELED, in all its provisions, the judgment rendered on January 18, 1999, between the parties, by the Aix-en-Provence Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Montpellier.
Publication: Bulletin 2001 VN ° 265 p. 213 Contested

decision: Court of Appeal of Aix-en-Provence, 1999-01-18

Precedents in case law: TO BE CONSIDERED: Chambre sociale, 1997-09-30, Bulletin 1997, V, no 289, p. 211 (cassation), and the cases cited.
Court of Cassation
Social Chamber

Public hearing of May 4, 1999 Cassation.

Appeal number: 97-40576
Published in the bulletin

President: M. Gélineau-Larrivet.
Rapporteur: Mr. Texier.
Advocate General: M. Kehrig.
Lawyers: SCP Gatineau, SCP Ryziger and Bouzidi.

FRENCH REPUBLIC 

IN THE NAME OF THE FRENCH PEOPLE

On the sole means:

Having regard to articles L. 122-6, L. 122-8 and L. 122-9 of the Labor Code;

Whereas Mr. Hczyszyn was hired by the company Paul Jacottet on December 16, 1968 as an accountant; that, by letter of February 2, 1993, the company, referring to a memorandum of January 21, 1993, informed him that due to a transfer of its offices from Versailles to Chartres, he had to report of December 15, 1993 in the new offices; queimant that this change constituted a modification of his work contract, Mr. Hczyszyn refused it and imputed to the company the breach of the contract; that the 26 February 1993, the company dismissed the employee for serious misconduct; that the latter then seized the industrial tribunal;

Whereas, to decide that the dismissal was justified by a serious fault, the court of appeal states that the employee, who recognizes that the use of his personal vehicle would have increased the duration of the daily trip by only about a half -time and which does not justify the use of public transport for the Elancourt-Versailles route, does not demonstrate that the change made constitutes, as far as he is concerned, a substantial modification of his employment contract while ‘furthermore, his status as an executive, with a monthly salary of 16,026 francs at the time of the termination of contractual relations, enabled him to take measures likely to attenuate the effects of this change appreciably;

Whereas, however, the change in the workplace must be assessed objectively;

That by ruling as it did, without examining whether the place of work to which Mr Hczyszyn was assigned was located in a geographical sector different from that where he previously worked and whether, therefore, the move constituted a modification of the contract work, the Court of Appeal did not give a legal basis for its decision;

FOR THESE REASONS :

BREAK AND CANCELED, in all its provisions, the judgment rendered on December 10, 1996, between the parties, by the Versailles Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Paris.

Publication: Bulletin 1999 VN ° 186 p. 136
Legal week, 1999-07-07, n ° 27, p. 1305, note C. LEFRANC-HAMONIAUX. Legal week, Company edition, 2000-05-18, n ° 20, p. 806, note C. LEFRANC-HAMONIAUX.
Contested decision: Versailles Court of Appeal, 1996-12-10

Court of Cassation
Social Chamber

Public hearing of December 16, 1998 Cassation.

Appeal number: 96-40227
Published in the bulletin

President: M. Gélineau-Larrivet.
Rapporteur: M. Waquet.
Advocate General: M. de Caigny.
Lawyers: SCP Gatineau, SCP Urtin-Petit and Rousseau-Van Troeyen.

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

On the sole means:

Having regard to article 1134 of the Civil Code;

Whereas Mr. Cuvillier was hired on January 5, 1987 by the Tisserand company as a locksmith and assigned to the locksmiths section, called to travel to the sites with another employee to install the materials manufactured by the business ; that the 20 June 1994, he learned the decision of his employer to assign it to work manufacturing in his workshop locksmith Ceaulmont and received, in writing, the order to appear the next day in this workshop; that, not having conformed to this order, he was dismissed for serious misconduct by a letter of June 30, 1994 invoking his “refusal to work”; that he seized the industrial tribunal;

Whereas, to order the Tisserand company to pay Mr. Cuvillier various sums as salary balance, notice indemnity, leave indemnity paid on notice and termination indemnity with interest at the legal rate from of the claim as well as damages for dismissal without real and serious cause, the judgment states, after ruling out the provisional nature of the disputed assignment, that, if the long-distance travel allowances received by the employee are in principle deemed cover the costs incurred by him, the employer cannot be unaware that he takes steps to limit the costs incurred as much as possible in order to retain the benefit of a party; that the assignment of Mr. Cuvillier domiciled in Palluau-sur-Indre to the Ceaulmont workshop located at a distance of 66 km would have resulted in forcing the employee to incur significant daily travel costs not covered by the employer and constituting professional constraints contributing to worsening the breach of his working conditions. remuneration; that, therefore, the employee, who justified the existence of a substantial modification of its working conditions, was founded to refuse to go to work Ceaulmont without incurring the grievance refusal to work;

Whereas, however, if the contractual remuneration cannot be modified without the agreement of the employee, the long-distance travel allowances do not constitute, in principle, an element of the contractual remuneration, but a reimbursement of expenses, even if it is advantageous for the employee, which is not due when the employee no longer has to travel;

Whereas, then, the fact of assigning an employee, who worked on construction sites, to a fixed workshop, located in the same geographical sector, does not entail any change in the workplace and constitutes a simple change in the working conditions relating to the managerial power of the employer; by ruling as it did without finding that the work station to which Mr. Cuvillier had been assigned was located in a different geographical area from that where he previously worked, the Court of Appeal, which did not characterize a modification of the employment contract, violated the aforementioned text;

FOR THESE REASONS :

BREAK AND CANCELED, in all its provisions, the judgment delivered on November 17, 1995, between the parties, by the Court of Appeal of Bourges; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Riom.

Publication: Bulletin 1998 VN ° 558 p. 417

Contested decision: Court of Appeal of Bourges, 1995-11-17

Court of Cassation
Social Chamber

 

Public hearing of June 16, 1998 Partial annulment.

Appeal number: 95-45033
Published in the bulletin

President: M. Gélineau-Larrivet.
Rapporteur: M. Waquet.
Advocate General: M. de Caigny.
Lawyers: SCP Masse-Dessen, Georges and Thouvenin, SCP Boré and Xavier.

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

On the sole means, taken in its first and second branches:

Having regard to article 1134 of the Civil Code, together articles L. 122-14-3, L. 122-40, L. 122-41 and L. 122-44 of the Labor Code;

Whereas a modification of the employment contract, pronounced as a disciplinary sanction against an employee, cannot be imposed on him; that, however, in the event of refusal of the employee, the employer can, within the framework of its disciplinary power, pronounce another sanction, instead of the refused sanction;

Whereas Mrs. Khouhli was hired on August 5, 1990 by the company Le Berry as hotel manager and assigned to the hotel-restaurant Le Berry in Bourges; that after a preliminary interview, the company notified, April 20, 1994, to his employee that she was demoted in the job of “head of reception”; that, by letter of April 26, 1994, the interested party refused this modification of its employment contract; that it has, then, been dismissed by letter of April 29, 1994;

Whereas to order the employer to pay the employee compensation for dismissal without real and serious cause, the Court of Appeal stated that the demotion pronounced on April 20, 1994, after a prior interview and on the grounds of grievances constituting faults, constituted a disciplinary sanction and that it follows that the grievances thus already sanctioned, in respect of which the employer had exhausted his disciplinary powers, could no longer be invoked in support of the dismissal; that it is therefore useless to examine its reality and its seriousness;

That by so ruling, while it notes, moreover, that Ms. Khouhli had refused to modify her employment contract and that it was therefore up to her to examine whether the facts relied on by the employer constituted a real and serious cause of dismissal, the Court of Appeal violated the aforementioned texts;

FOR THESE REASONS, and without there being any need to rule on the third part:

BREAK AND CANCELED, but only in that it condemned the company Le Berry to pay compensation for dismissal without real and serious cause, the judgment delivered on September 15, 1995, between the parties, by the Court of Appeal of Bourges ; puts, consequently, as for this, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Lyon.

Publication: Bulletin 1998 VN ° 320 p. 243
Legal week, Company edition, 1998-10-01, n ° 40, p. 1552, note D. Boulmier. Legal week, 1998-10-07, n ° 41, p. 1769, note D. Corrignan-Carsin. Dalloz, 1999-02-25, n ° 8, p. 125, note C. Puigelier. Dalloz, 1999-09-30, n ° 34, p. 359, note J. Mouly.
Contested decision: Court of Appeal of Bourges, 1995-09-15

Precedents in case law: TO BE CONSIDERED: Chambre sociale, 1991-10-09, Bulletin 1991, V, n ° 400, p. 250 (partial cassation), and the judgments cited. Social chamber, 1997-11-19, Bulletin 1997, V, n ° 53, p. 35 (cassation), and the judgment cited.

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