Employment tribunal: the question of the area of ​​competence. By Xavier Berjot

Measures which do not encounter any serious dispute or which justify the existence of a dispute

In all urgent cases, the summary proceedings committee may, within the limits of the competence of the Labor Courts, order all measures which do not come up against any serious dispute or which are justified by the existence of a dispute ( C. work art. R. 1455-5). According to this text, two cumulative conditions must be met:

- The existence of an emergency situation;

- The absence of serious dispute or the existence of a dispute.

This last condition deserves to be clarified: in the presence of a dispute, interim measures may be pronounced despite the existence of a serious dispute.

The analysis of the case law establishes that the following situations are likely to fall within the jurisdiction of the judge in chambers:

- In the presence of facts of sexual harassment that are not seriously contestable, the judge in summary proceedings has the power to cancel the breach of the contract which is based on facts prohibited by article L. 1153-2) of the Labor Code (CA Paris 18 -1-1996 no. 95-7026).

- When the reality of the change of assignment of an employee is established, the latter having been deprived of the responsibilities he previously exercised, his refusal to accept this modification characterizes the dispute and authorizes the judge in chambers to order measures restoration conservatories (CA Paris 22-5-1996 no. 96-3064).

- The employer being responsible for providing proof that the employee whose early retirement he is considering fulfills the conditions to benefit from a full-rate pension, and this proof can only result from a career statement that only the employee can hold, there is a legitimate reason to order the communication of this document to the company in summary proceedings (Cass. soc. 13-5-2009 n° 08-41.826).

Conversely, the jurisdiction of the judge in chambers was excluded in the cases referred to below:

- It does not fall within the powers of the judge in chambers to pronounce, unless provisions authorizing it, the nullity of a contract. The decision therefore incurs the cassation ruling in summary proceedings and deciding in its operative part that a transaction was void (Cass. soc. 14-3-2006 n° 04-48.322).

- The urgent applications judge cannot order the issuance of a work certificate, payslips and a Pôle Emploi certificate, without responding to the employer's conclusions contesting the very existence of an employment contract ( Cass. soc. 9-7-2014 n° 13-16.813).

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- The imputability of the termination of an employment contract, following the acknowledgment of the termination of the employment contract by the employee, is not within the jurisdiction of the summary jurisdiction (Cass. soc. 11-5-2005 no. 03-45.228).

Precautionary or remedial measures necessary to prevent imminent damage or to put an end to a manifestly unlawful disturbance

The summary proceedings may always, even in the presence of a serious dispute, prescribe the precautionary or remedial measures necessary to prevent imminent damage or to put an end to a manifestly unlawful disturbance (C. trav. art. R . 1455-6). The above measures do not require the finding of an emergency situation, since the existence of a manifestly unlawful disturbance and/or imminent damage necessarily supposes this situation.

Thus, for the Court of Cassation, even in the presence of a serious dispute, the judge in chambers can take one of the protective measures provided for in article R. 1455-6 of the Labor Code (Cass. soc. 3- 7-1986 no. 83-45.048). On the other hand, quite logically, there is no longer any need for interim relief when the alleged disorder has disappeared on the date on which the judge rules (Cass. soc. 26-6-1991 n° 88-17.936).

The plaintiff may rely on manifestly unlawful disturbance or imminent harm, in particular in the following situations:

- A deduction from wages due to poor performance by the employee of his contractual obligations constitutes a pecuniary sanction prohibited by article L. 1331-2 of the Labor Code. Such a measure justifies the jurisdiction of the industrial tribunal judge in order to put an end to the manifestly illicit disturbance which results from it (Cass. soc. 20-2-1991 n° 90-41.119).

- The employer's refusal to pay the financial compensation for the non-competition clause without blaming the employee for any act of competition constitutes flagrant non-performance of the contractual clause and characterizes a manifestly unlawful disturbance. Therefore, the judge in chambers is competent to release the employee from the non-competition clause and put an end to the disturbance thus observed (Cass. soc. 22-2-2000 n° 98-43.005).

- The impossibility for the protected employee whose administrative authorization for dismissal is canceled to obtain his reinstatement constitutes a manifestly unlawful disturbance which the judge in chambers must put an end to, even in the presence of a serious dispute (Cass. soc. 20 -4-2017 No. 15-25.401).

Reverse :

- The judge in chambers does not have the power to settle the merits of the dispute by pronouncing the cancellation of a disciplinary sanction (Cass. soc. 23-3-1989 n° 86-40.053).

- When the nullity of the dismissal is not incurred, the judge in chambers does not have the power to order the stoppage of the procedure nor the continuation of the employment contract (Cass. soc. 31-3-2004 n° 01-46.960).

In conclusion, let us recall that Article 145 of the Code of Civil Procedure allows the ordering, on request or in summary proceedings, of legally admissible investigative measures, when there is a legitimate reason to maintain or establish before any trial the proof of the facts on which the resolution of a dispute may depend, is applicable in industrial tribunal matters.

The Court of Cassation specified that, when ruling pursuant to Article 145 of the Code of Civil Procedure, the judge in chambers is not subject to the conditions relating to urgency or the absence of serious dispute ( Cass. mixed chamber 7-5-1982 n° 79-11.814).

About the Author

Xavier Berjot is a Partner at SANCY Avocats.