Dear Sirs are you able please to give me any advice regarding French employment law, I am already subscribed to youthanks XXXXX
Province/Country relating to question: France
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Hi there yes I am working in court on Tuesday not just as the translator but representing my clients for certain good reasons, they are fighting off an ex-employee who insisted on having an auto-entrepreneur employment contract when she was taken on in August 2010, her work was appalling (she submitted invoices and they paid her rent monthly also) she is now trying to claim loads of money back from them in the Conseil de Prud'hommes claiming she has the right as if she had been taken on as an ordinary salaried employee - back pay, overtime, holiday pay and more, they went through the normal dismissal procedure, meetings, warnings etc. they paid her till the end of the month and more, my question is is someone taken on as an auto-entrepreneur entitled to claim back before the Conseil all she is claiming back and also what characterises gross conduct/dishonourable discharge in France? I have to prepare submissions today, so thanks for an early answer : Ffion
I suspect that the employee will be claiming that she should have been taken on as an employee and not as a "auto-entrepreneur" (self-employed person).
The question will therefore be whether she should be considered an employee regardless of whatever her contract may say and whether it was entered into at her request. If the court agrees, she will then be considered an employee. As a result, her termination will be examined according to French employment law.
Firstly, you will want to insist on the fact that the choice of contract was made at her specific request (you need to provide written proof of this e.e email correspondence). You will want to argue that the court should respect the contractual autonomy of the persons.
Secondly, you will want to highlight any factors that show she was not working under the subordination of the company but had freedom to choose her working methods (again you will need to provide written proof of this).
However, the French courts are likely to follow the extensive existing case law on what amounts to a salaried worker.Under French law, a person will be considered as a salaried worker if she places herself under the subordination of the employer and is remunerated. Subordination exists where the worker provides her services under the supervision and control of the employer and the employer is given the right to sanction any failures of the worker.
This can be established by one of the following elements: the employee does not choose her working hours, the employee does not provide offices and equipment to perform her work, the employee integrates an existing business entity, etc. Therefore if the court was to consider that the person was subordinate to the employer, she will be considered as an employee.
The court will then look at whether the provisions on termination of the contract were complied with. This will depend in turn on whether the contract is considered a fixed-term contract or an indefinite term contract.
Fourthly, you will want to argue that even if the court finds she should be considered a salaried worker, you would want to argue that the court should consider this a fixed-term contract (contrat à durée déterminée - CDD).
A CDD can be terminated where the worker commits a serious breach (faute grave) as explained here:http://vosdroits.service-public.fr/particuliers/F40.xhtml
The notion of fautre grave is explained here:http://vosdroits.service-public.fr/particuliers/F1137.xhtml
At the end of the day, this requires a careful review of all the documents. I would suggest that you obtain the services of a qualified avocat to defend the company.
I hope this answers your questions. Please don't forget to click accept. Thanks in advance.
Lawyer with Maîtrise en droit & Licence spéciale en droit européen.
I accept all of this however this person INSISTED on being taken on as an auto-entrerpreneur, she grossly underperformed therefore what exactly are the rights of her ex-employers, they gave her loads of warnings (and in writing), they had meetings with her, and in the end they lost patience, paid her money and asked her to leave and now she is arguing, as you mention above, has the rights to an ordinary salaried person, this cannot be right surely
As I said, it all depends on what the court decides is her correct status. The company's good faith will mean it should not be open to prosecution for willfully trying to circumvent French employment law.
Also, if it's clear she was in the wrong and that the employer complied with all disciplinary procedures, then she should not be able to claim it is wrongful termination.
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