Non-temporary, non-contractual assignment to a separate post […].

Assignment to a different position on a non-temporary and non-contractual basis constitutes a change to the employment contract, so that resumption of previous duties requires the employee’s express agreement.

(Cass. soc., 21 juin 2023, n°22-13.514)

An employee was hired in October 2012 as an ambulance auxiliary.

From June 2016, she was assigned to a separate position as a billing secretary.

Without obtaining her agreement, her employer decided in February 2018 to reassign her to her original position as an ambulance assistant.

Having failed to turn up, the employee was dismissed for gross misconduct on the grounds of unjustified absence.

On appeal, the judges ruled that her dismissal was well-founded; in their view, the reassignment of the employee to her original position constituted a change in her working conditions and therefore did not require her consent.

They also noted that the assignment to administrative duties had not been the subject of any amendment to the contract or of any formalisation by the employer, even though the collective agreement for road transport stipulates that a change of post “… must be accompanied by a change of position”. must be notified in writing ” (article 4 of appendix no. 1 “Workers” of 16 June 1961).

The courts have also ruled that holding a separate job for nearly 18 months “does not have the effect of rendering the employment contract ineffective with regard to the initial designation of the job” (CA Toulouse, 4^th ch. sect. 1, Oct. 1^st 2021, n°19/03462).

The trial judges therefore considered that gross misconduct had been established.

The Social Division of the Cour de cassation (French Supreme Court), hearing the case, censured this reasoning.

The Court ruled that, since the employee had been assigned to a different job that was not temporary, her agreement was required for her to be reassigned to her original position, since this constituted a change to her employment contract.

An employment contract that had not, however, been amended with regard to the initial assignment, because the written notification required by the provisions of the collective bargaining agreement had not taken place…

In other words, from the moment he is hired until he is fired, his job is contractually identical.

In our opinion, it was the length of the assignment that was decisive, almost 18 months in this case.

This is in fact what emerges from the case law of the social chamber of the Court of Cassation (Cass. soc., 2 March 1994, no. 90-40.080; soc., 17 Oct. 2007, no. 05-42.525, soc., 20 Jan. 2010, no. 08-42.739).

When the Cour de cassation uses a factual interpretation to call into question a rule of law…