jeudi 21 juin 2018

The reclassification of a permanent intermittent contract (‘CDII’) into a permanent contract (‘CDI’) with full-time status


An important judgment, in more ways than one:

The reclassification of a permanent intermittent contract (“CDII”) into a permanent contract (“CDI”) with full-time status

(the annual minimum guaranteed volume of hours was absent and the contractual references to availability were improper).

 On September 29, 2011, the Labour Tribunal (“le Conseil des prud’hommes” or “CPH”) in Lyon issued a very interesting decision, handed down by an arbitrating judge after a split-decision ruling (RG N° F 09/00213; if you are curious, you may read this judgment “in extenso” by clicking here).

 Outlined below are the important elements of this judgment:

The context: a language trainer is hired under a CDII contract (Art. 6 of the National Collective Bargaining Agreement for Training Companies, the “CCNOF”). She notices several irregularities in her contract, firstly concerning missing required references, including the absence of the guaranteed minimum amount of annual hours, and secondly concerning work conditions that she considers abusive, particularly with regard to how on-call the contract required her to be. She calls for her work contract to be amended so as to correct the irregularities; in this, she is supported by her union, the SYNAFOR-CFDT. Since the amendment does not satisfy her demands, she refuses it, and she is consequently fired for gross professional misconduct. Accompanied by a union representative from the SYNAFOR-CFDT, who intervenes in support of the collective interests of the profession, she appeals to the CPH to have her CDII contract reclassified as a full-time CDI contract, to have her dismissal ruled illegal, and to rule on several other matters.

The debate: First, the employee demonstrates that in the absence of a guaranteed minimum amount of annual hours, she cannot estimate her work status (in the part-time-to-full-time scale) and the amount of work that was therefore contractually required of her. Second, she demonstrates that the amount of availability required of her (28 hours/week over 48 weeks) is such that she must in fact be constantly on call for her employer. The employer, in turn, is unable to demonstrate that there is something particular about his company’s operations that makes its staffing needs so unpredictable. Indeed, the proposed amendments provided by the employee show that the company operates from 8AM to 8PM Mondays to Fridays, and from 8AM to 6PM Saturdays, all year long.

The judgment: The language teachers reading this article can no doubt guess which judgment was ultimately obtained after the initial split-decision ruling.

1) The judgment acknowledges that the contract is missing necessary references (concerning mainly the minimum annual workload, but also the allocation of work hours). Based on these fundamental irregularities, it follows that the CDII must be reclassified as a common-law CDI.

2) The judgment recognizes that the employee is required to remain on call constantly for her employer, because she never has a defined schedule, and moreover, she cannot know what her annual workload is. Furthermore, her total work hours vary so much from month to month (from 0 hours to 121.5 hours) that the employee cannot predict during which periods she would be able to work for another employer. Finally, the amendment (which was proposed after she complained, and which she refused) called for 250 hours of class in return for 1344 hours of “availability,” such that the CDI must be reclassified as a full-time contract.

3) The judgment recognizes that the firing is improper. The dismissal is motivated by “the employee’s refusing to sign an amendment, complying with what is required by law and by the collective bargaining agreement”; the employer claims that the employee more or less “chose to be fired rather than accepting a regularized contract [sic]”. The arbitrating judge held that the amendment in question, the one which was requested and then refused by the employee, demonstrates “a deliberate attempt to keep the employee permanently available for a guaranteed annual minimum of 250 hours of classes, 350 hours of work when the preparation time is included, for an overall availability of 1344 hours.”

4) The contract under investigation also included a non-compete clause, but without financial compensation. The employee received compensatory damages totalling 1,000€, in damages and interest.

In sum: the DEMOS LANGUES company was ordered to pay our colleague approximately 36,000€, not including the related legal interests. For its part, the professional trade union, having intervened in the collective interests of the profession, obtained 1,500€ in damages and interest.

April  2014

article in English

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