How should an employer act if an employee […]?

Employment Law News – March 2023

On March 1^st, 2023, the Court of Cassation recalled that “the employer is obliged to pay his remuneration and to provide work to the employee who is at his disposal”, even if the employee had a great deal of freedom of organization in his schedule.

In this case, an employee had filed a claim for back pay with the labour court, and requested that her dismissal be reclassified as an unjustified dismissal, arguing that her contract provided for an effective monthly working time of 60 hours, but that in practice, she carried out her assignments for a shorter period, and was therefore paid pro rata.

The Court of Appeal dismissed his claims on the grounds:

• a totally free organization of her schedule, since she chose her hours according to her convenience;
• the absence of proof that the company had asked him not to work the contractual number of hours, nor that it had opposed his arrival;
• that it was not established that the failure to complete the scheduled number of hours resulted from a failure to provide assignments.

Clearly, according to the Court of Appeal, the burden of proof was on the employee.

The Court of Cassation censured the decision and considered that it was up to the employer to prove that he had actually provided both the work and the salary agreed upon, regardless of the freedom of organization that was granted.

If the employee does not work the set number of hours, it is up to the employer to prove that the employee did not make himself available or that he refused to perform the tasks required of him.

Cass. soc., March 1^st, 2023, n°21-15617