OBLIGED
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OBLIGED

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COUR DE CASSATION, SOCIAL CHAMBER, delivered the following judgment:

On appeals n ° P 00-40.285 and Q 00-40.286 brought by:

1 / Mr. Vincenzo Fornito,

2 / Ms. Nicolina Fornito,

living together 32, chemin de la Glacière, 69600 Oullins,

in cassation of two judgments delivered on November 12, 1999 by the Lyon Court of Appeal (social chamber), in favor of the Verzier management, representing the syndicate of co-owners of the building “Pins de la Camille”, residing at 50, cours Franklin Roosevelt, 69006 Lyon,

defendant in cassation;

Régie Verzier, defendant in the main appeals n ° P 00-40.285 and Q 00-40.286, lodged two cross-appeals against the same judgment;

THE COURT, in the public hearing of December 19, 2001, in which were present: Mr. Le Roux-Cocheril, senior advisor serving as president, Mrs. Bourgeot, referendum advisor, Mr. Brissier, Mrs. Lemoine Jeanjean, advisers, M. Duplat, Advocate General, Mme Molle-de Hédouville, Clerk of the Chamber;

On the report of Mrs. Bourgeot, referendum adviser, the observations of the SCP Rouvière and Boutet, lawyer of Mr. and Mrs. Fornito, of the SCP Gatineau, lawyer of the Verzier management, representing the union of the co-owners of the building “Les Pins de la Camille “, the conclusions of Mr. Duplat, Advocate General, and after having deliberated in accordance with the law;

Given their connection, appeals n ° Q 00-40.286 and P 00-40.285 are joined;

Whereas by contract of July 17, 1985 the union of the co-owners of the building “Les Pins de la Camille” hired Mrs. and Mr. Fornito so that they occupy as a couple the functions of caretakers; that the employees seized the industrial tribunal of requests for reminders of wages;

On the main employee appeals:

On the first plea common to the appeals:

Whereas the employees criticize the contested judgments for having dismissed their request for payment of salary reminders relating to the overtime hours related to Saturday work and part of the daily hours of rest, then, according to the means:

1 / that it follows from Article L. 212-1-1 of the Labor Code that in the event of a dispute relating to the existence or the number of hours worked, the employer must provide the judge with the elements capable of justifying the hours actually worked by the employee so that proof of the hours worked does not fall specially on either party and that the judge cannot, in order to reject a request for overtime, be based on the ‘insufficient evidence provided by the employee; that stating that Mr. and Mrs. Fornito did not prove that they worked Saturday morning to dismiss their demands for payment of overtime, the Court of Appeal violated the aforementioned text;

2 / that the court of appeal which to reject the request of the employees in payment of the hours of rest worked stated that their request was contradictory with their request relating to the payment of the hours of Saturday morning, without looking for the schedules actually carried out by the employees in view of the elements that the employer was required to provide him, deprived his decision of legal basis, with regard to Article L. 212-1-1 of the Labor Code;

But given that after having noted the contradictory nature of the elements put forward by the employees to justify their request, the Court of Appeal held, concerning Mr. Fornito that the latter occupying a job of concierge did not fall under the ordinary law regime , did not work on an hourly basis and that her employment rate was determined by application of the job evaluation scale appended to the collective agreement, and concerning Ms. Fornito that she was not paid for working time but according to the units of values ​​fixed by the collective agreement for each of the tasks entrusted to him and that dn a job of this nature, the employee has a wide freedom of organization and is not required to perform most of the tasks at a given time, that the amplitude which the employees reported was that of opening of the lodge and did not necessarily correspond to that of the working days since the interested parties were not the only debtor of the obligation of presence and supervision during the opening time of the lodge, this obligation having to be discharged either by one either by the other, that it was therefore not impossible for them to perform during the opening hours of the lodge the maintenance and upkeep tasks incumbent on them; that in the state of these findings and statements the court of appeal legally justified its decision; that the means is unfounded;

The second plea common to the appeals:

Whereas the employees criticize the judgments for having rejected their request for remuneration for the periods when the lodge was closed during which their employment contract required them to stay in their official accommodation without being able to be away from it, then, according to the means, that the duration of the interventions of an employee who, without being at the permanent and immediate disposal of the employer, has the obligation to remain at his home or nearby in order to be able to intervene to carry out work in the service of the company is considered as effective working time; that the Court of Appeal, which found that during periods of on-call duty, Mr. and Mrs. Fornito were required to remain at the permanent disposal of the

But whereas the Court of Appeal did not have to engage in research which was not requested of it; that the plea is inadmissible;

On the third plea and the first part of the third plea, common to the appeals and on the second part of the third plea in Mr Fornito’s appeal:

Whereas the employees object to the stops for having rejected their request for payment of overtime for cleaning the elevators, then, according to the means:

1 / that it follows from Article L. 212-1-1 of the Labor Code that in the event of a dispute relating to the existence or the number of hours worked, the employer must provide the judge with the elements capable of justifying the hours actually worked by the employee so that proof of the hours worked does not fall specially on either party and that the judge cannot, in order to reject a request for overtime, be based on the ‘insufficient evidence provided by the employee; that by stating concerning Mr. Fornito that he did not prove that he had cleaned the thirteen elevators of the condominium three times a week to dismiss him from his requests for payment of

2 / that in his conclusions appeal Mr. Fornito argued that following the stoppage of work which his wife had been victim from September 1998 he had carried out only the cleaning of the elevators; that affirming that this task was not incumbent upon him without responding to this head of the conclusions of appeal, the court of appeal violated Article 455 of the new Code of Civil Procedure;

But given that after noting that Mr. Fornito was not entrusted with this task which fell to his wife, the Court of Appeal, necessarily responding to the allegedly neglected conclusions, noted, on the one hand, that the employee did not report no proof that he had actually performed it and, on the other hand, that Mrs. Fornito had received a remuneration for cleaning the elevators fixed in accordance with the contractual provisions; that the state of these findings and statements the court of appeal legally justified its decision; that the means is unfounded;

On the employer’s cross-appeals:

On the single ground common to the appeals:

Considering article 455 of the new Code of Civil Procedure;

Whereas to order the employer to pay each of the employees a sum for the undue deductions made for the periods of paid leave for wages in kind, after having stated exactly that under the fourth paragraph of article L. 771-4 of the Labor Code, the salary for the leave period is increased by an allowance representing housing and all other benefits in kind granted by the employer under a contract and that under the penultimate paragraph of Article 25 of the Collective Agreement during the period of paid leave, the employee generally receives the total gross contractual remuneration that he would have received in activity without deduction of the salary in kind if he is housed,and held that the salary in kind had therefore been wrongly deducted from the remuneration that the interested parties had received for the periods of paid leave, the Court of Appeal noted that the employer did not contest the amount of the claim that the employees trained as such;

That by so ruling, without responding to the conclusions of the employer who maintained that it resulted from the payslips paid to the debates that, during the periods of paid leave, the deduction of the benefit in kind housing had been systematically compensated by the payment of an “indemnity paid vacation in progress” in addition to the normal payment of the salary, the court of appeal did not meet the requirements of the aforementioned text;

FOR THESE REASONS :

BREAK AND CANCELED, but only at their disposal, having ordered the employer to pay each employee a sum for the undue deductions made for the periods of paid leave for wages in kind, the judgments rendered on November 12, 1999, between parties, by the Lyon Court of Appeal; returns, consequently, as for this, the cause and the parts in the state where they were before the aforementioned judgments and, to be done right, returns them before the court of appeal of Dijon;

Orders Mr. and Mrs. Fornito to pay the costs;

Considering article 700 of the new Code of Civil Procedure, rejects the requests of the Verzier management representative of the syndicate of co-owners of the building “Pins de la Camille”;

Said that on the 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 quashed judgments;

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



Contested decision: Lyon Court of Appeal (social chamber) 1999-11-12

Court of Cassation
Social Chamber

Public hearing of October 17, 2000 Partial reversal


Appeal number: 97-45914
Unpublished title

President: M. GELINEAU-LARRIVET

 

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COUR DE CASSATION, SOCIAL CHAMBER, delivered the following judgment:

On the appeal brought by Mr José Pereira, residing at 29, rue Montera, 75012 Paris,

in cassation of a judgment rendered on November 4, 1997 by the Paris Court of Appeal (Social Chamber), in favor of the syndicate of co-owners of 145, rue Pelleport, 75020 Paris, whose trustee is Cabinet Petitjean, a limited company of which the registered office is 29, boulevard Jules Sandeau, 75116 Paris,

defendant in cassation;

The syndicate of co-owners of 145, rue Pelleport in Paris 20e has filed a cross-appeal against the same judgment;

 

THE COURT, in the public hearing of July 11, 2000, where were present: Mr. Gélineau-Larrivet, president, Mr. Merlin, advisor rapporteur, MM. Waquet, Le Roux-Cocheril, Brissier, Finance, Texier, Ms Lemoine Jeanjean, Quenson, advisers, Mr Poisot, Ms Maunand, Bourgeot, MM. Soury, Liffran, Besson, Mme Duval-Arnould, referendum advisers, M. de Caigny, advocate general, Mme Marcadeux, chamber clerk;

On the report of Mr. Merlin, adviser, the observations of the SCP Lyon-Caen, Fabiani and Thiriez, lawyer of Mr. Pereira, the conclusions of Mr. de Caigny, general counsel, and after having deliberated in accordance with the law;

Whereas Mr. Pereira was engaged, on January 29, 1986, as permanent principal guardian, category B, coefficient 160, by the syndicate of the co-owners of the building located at 145, rue Pelleport in Paris (20th); that he benefited in this building with his wife, engaged on the same date, a housing function and that the evaluation of his tasks in units of value corresponded to a full service employment at 106%; that after refusing to sign an amendment to his employment contract which had been proposed to him by the new co-ownership manager, he seized the labor tribunal with requests for payment of reminder of wages, overtime and leave paid, weekly rest indemnities and compensatory rest, arguing that he does not

On the first ground of the cross-appeal of the syndicate of co-owners which is preliminary:

in October 1994 to install an audible alarm in the elevators; that by determining for such reasons without seeking, as the conclusions of the trustee invited him to do, whether the person concerned, who had, according to his contract, three hours of rest each day during which he was free to ‘absent, had effectively ensured a vigilant presence in his official accommodation during these cut-off hours, the Court of Appeal deprived its decision of any legal basis with regard to article 1134 of the Civil Code; then, again, that 2 / the employee who is present in his official accommodation during the hours of rest cannot claim to ensure a permanence that as long as his employer has given him the instruction; as invited by the syndic’s conclusions, if the person concerned, who had, according to his contract, three hours of rest each day during which he was free to be absent, had indeed ensured a vigilant presence in his accommodation during these cut-off hours, the Court of Appeal deprived its decision of any legal basis with regard to article 1134 of the Civil Code; then, again, that 2 / the employee who is present in his official accommodation during the hours of rest cannot claim to ensure a permanence that as long as his employer has given him the instruction; as invited by the syndic’s conclusions, if the person concerned, who had, according to his contract, three hours of rest each day during which he was free to be absent, had indeed ensured a vigilant presence in his accommodation during these cut-off hours, the Court of Appeal deprived its decision of any legal basis with regard to article 1134 of the Civil Code; then, again, that 2 / the employee who is present in his official accommodation during the hours of rest cannot claim to ensure a permanence that as long as his employer has given him the instruction; had effectively ensured a vigilant presence in his official accommodation during these cut-off hours, the Court of Appeal deprived its decision of any legal basis with regard to article 1134 of the Civil Code; then, again, that 2 / the employee who is present in his official accommodation during the hours of rest cannot claim to ensure a permanence that as long as his employer has given him the instruction; had effectively ensured a vigilant presence in his official accommodation during these cut-off hours, the Court of Appeal deprived its decision of any legal basis with regard to article 1134 of the Civil Code; then, again, that 2 / the employee who is present in his official accommodation during the hours of rest cannot claim to ensure a permanence that as long as his employer has given him the instruction;

in the present case, the syndicate of co-owners argued, in its conclusions, that the note of the former trustee of 23 July 1986 had been withdrawn from the billboard as soon as the trustee changed in 1991, which resulted that from this date at least, the guard was not subjected to any instruction imposing a permanence to him during his hours of rest; that deciding that the interested had provided such permanence between 1986 and 1994 without finding that it had been requested by his employer, the Court of Appeal still deprived his decision of any legal basis with regard to the same text; then, finally, that 3 / the court of appeal states that it must be deduced from the fact that the guard was on duty during the three hours of daily closing of the lodge, that

that being determined by such hypothetical reasons, the Court of Appeal deprived its decision of any legal basis with regard to Article 1134 of the Civil Code;

But given that the Court of Appeal retained, without adopting hypothetical reasons, by a sovereign assessment of the elements of fact and evidence which were submitted to it and can only be the subject of a new discussion before the Court of Cassation. the caretaker, during his daily rest period and from Saturday afternoon to Monday morning, was on duty for the security of the building, in accordance with a note from the property manager of July 23, 1986 which was not questioned that by a decision of October 27, 1994; that, by these reasons, it legally justified its decision; that the means is unfounded;

On the second ground of the employee’s main appeal:

Whereas the employee also criticizes the judgment for having rejected his request for payment of a reminder of wages for overtime and the related paid leave, then, according to the means, that 1 / Annex I of the Agreement national collective of guards, janitors and building employees provides, in its VII, last paragraph, relating to the night penalty, that this penalty gives rise to the allocation of 500 value units; that by allocating the guardian 200 value units for weekend night penalties, the court of appeal violated, by refusal of application, the aforementioned provisions of VII, last paragraph, of annex I of the National Collective Agreement for Caretakers, Janitors and Building Employees; and while 2 / article 19, last paragraph, of the national collective agreement for caretakers, janitors and building employees relating to the permanence of weekly rest and public holidays provides that the employee providing this permanence will benefit either from additional remuneration equal to one-thirtieth of the total gross monthly contractual remuneration and a compensatory rest of the same duration in the following fortnight, or additional remuneration equal to two-thirtieths of the remuneration; that by fixing the basis of remuneration at only one thirtieth of the remuneration, the Court of Appeal violated, by refusal of application, the aforementioned provisions of Article 19, last paragraph, of the National Collective Agreement of the guards, janitors and building workers; concierges and building employees relating to the permanence of weekly rest and public holidays provides that the employee ensuring this permanence will benefit either from additional remuneration equal to one-thirtieth of the total gross monthly contractual remuneration and from a compensatory rest of the same duration in the following fortnight, or additional remuneration equal to two-thirtieths of the remuneration; that by setting the basis of remuneration at only one thirtieth of the remuneration, the Court of Appeal violated, by refusal of application, the aforementioned provisions of Article 19, last paragraph, of the National Collective Agreement of the guards, janitors and building workers; concierges and building employees relating to the permanence of weekly rest and public holidays provides that the employee ensuring this permanence will benefit either from additional remuneration equal to one-thirtieth of the total gross monthly contractual remuneration and from a compensatory rest of the same duration in the following fortnight, or additional remuneration equal to two-thirtieths of the remuneration; that by fixing the basis of remuneration at only one thirtieth of the remuneration, the Court of Appeal violated, by refusal of application, the aforementioned provisions of Article 19, last paragraph, of the National Collective Agreement of the guards, janitors and building workers; building relating to the permanence of weekly rest and public holidays provides that the employee ensuring this permanence will benefit either from an additional remuneration equal to one thirtieth of the total gross conventional monthly remuneration and from a compensatory rest of the same duration in the fortnight which follows, or an additional remuneration equal to two thirtieths of the remuneration; that by fixing the basis of remuneration at only one thirtieth of the remuneration, the Court of Appeal violated, by refusal of application, the aforementioned provisions of Article 19, last paragraph, of the National Collective Agreement of the guards, janitors and building workers; building relating to the permanence of weekly rest and public holidays provides that the employee ensuring this permanence will benefit either from an additional remuneration equal to one thirtieth of the total gross conventional monthly remuneration and from a compensatory rest of the same duration in the fortnight which follows, or an additional remuneration equal to two thirtieths of the remuneration; that by fixing the basis of remuneration at only one thirtieth of the remuneration, the Court of Appeal violated, by refusal of application, the aforementioned provisions of Article 19, last paragraph, of the National Collective Agreement of the guards, janitors and building workers; additional compensation equal to one-thirtieth of the total gross conventional compensation and a compensatory rest of the same duration in the following fortnight, i.e. additional compensation equal to two-thirtieths of the compensation; that by setting the basis of remuneration at only one thirtieth of the remuneration, the Court of Appeal violated, by refusal of application, the aforementioned provisions of Article 19, last paragraph, of the National Collective Agreement of the guards, janitors and building workers; additional compensation equal to one-thirtieth of the total gross conventional compensation and a compensatory rest of the same duration in the following fortnight, i.e. additional compensation equal to two-thirtieths of the compensation; that by fixing the basis of remuneration at only one thirtieth of the remuneration, the Court of Appeal violated, by refusal of application, the aforementioned provisions of Article 19, last paragraph, of the National Collective Agreement of the guards, janitors and building workers;

But expected that, noting that the employee ensured a penalty whose remuneration was not provided for by the collective agreement, the Court of Appeal assessed the amount of this remuneration;

that its assessment cannot be discussed before the Court of Cassation;

that the means is unfounded;

On the second ground of the cross-appeal of the syndicate of co-owners:

Whereas the syndicate of co-owners still criticizes the judgment for having decided that the permanence provided by the caretaker during his three hours of daily rest should be remunerated on the basis of 1 / 30th of the remuneration for a period of presence of 8 hours, then, according to the means, that it follows from the references to the findings of the judgment, not contradicted by the contested judgment, that the opening hours of the lodge were from 7 a.m. to 8 p.m., including three hours of rest , from which it resulted that the remuneration of the guard corresponded to a daily working time of 10 hours and not of 8 hours; that

But given that the remuneration of the guard having been fixed at 1 / 30th of the monthly remuneration, the daily working time had no incidence on the evaluation of its amount; that the means is unfounded;

But on the first ground of the employee’s main appeal, taken in its fourth branch:

Having regard to article L. 212-4 of the Labor Code, in the version then in force;

Whereas, within the meaning of Article L. 212-4 of the Labor Code, constitutes effective work, the time during which the employee is available to the employer and must comply with his directives without being able to freely attend to his personal occupations; that constitutes, on the other hand, a penalty and not actual work a period during which the employee, without being at the permanent and immediate disposal of the employer, has the obligation to remain at his home or nearby in order to be in measure to intervene to perform work in the service of the company, the duration of this intervention being considered as effective working time;

Whereas, to reject the request of the employee who claimed payment as actual working hours of the hours on duty for the security of the building that he did during his break times during the week and during the two weekend nights , the court of appeal states that these hours of permanence have the character of a penalty and must be remunerated on the bases defined in the reasons for its decision;

That by ruling thus, without investigating whether the employee was required, during his hours of duty, to carry out interventions constituting an effective working time which was to be remunerated as such, the court of appeal did not give legal basis for its decision;

And on the third ground of appeal of the employee’s principal:

Considering article 1382 of the Civil Code and article 380-1 of the new Code of Civil Procedure;

Whereas the Court of Appeal stayed ruling on the request of the syndicate of co-owners for a condemnation of the guardian to pay him a sum as damages for abusive procedure;

That by ruling thus, while it resulted from its decision that the demands of the employee were justified at least in part, the Court of Appeal violated the first of the aforementioned texts;

And whereas it is necessary, in accordance with article 627, paragraph 2, of the new Code of Civil Procedure, to put an end to the dispute, on this head, by applying the appropriate rule of law;

FOR THESE REASONS, without there being any need to rule on the other branches of the first plea of ​​the employee’s main appeal:

BREAK AND CANCELED, but only in its provisions concerning the payment of hours of duty for the security of the building, during which the employee was led to intervene, and pronouncing a stay of ruling on the claim for payment of damages for abusive procedure of the syndicate of co-owners, the judgment delivered on November 4, 1997, between the parties, by the Paris Court of Appeal; 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 Versailles;

Holds that there is no reason for dismissal from the head of the stay of proceedings;

Dismisses the request for damages from the syndicate of co-owners for abusive proceedings;

Leaves each party to bear its own costs;

Considering article 700 of the new Code of Civil Procedure, rejects all the requests;

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 October 17th, 2000.

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