Employment Law: Victory for our clients
The Law
No, it is not acceptable for an employer to have the same employee sign several permanent employment contracts (CDIs), each with its own separate probationary period.
The Facts
Employer X hired my client Y under a permanent contract (CDI) as a traveling sales representative (VRP). This employment contract included a 3-month probationary period.
Two months later, the employer signed a new CDI with the same employee, promoting him to the position of Sales Director.This second contract included a 4-month probationary period.
Following a disagreement between my client and their employer regarding commissions and expenses, the employer terminated the second contract two months after it was signed, citing an unsuccessful probation.
We demonstrated to the court that the termination of his contract under these circumstances occurred outside of the probationary period and therefore constituted a dismissal without just cause.
The employer put forward a counter-argument to our client’s:
They claimed that the signing of the second contract implicitly ended the first and therefore that the termination of the second contract occurred within a valid probationary period.
This case raised some straightforward questions of employment law:
What is the purpose of a probationary period?
Is a second probationary period valid?
What is the difference between a probationary period and a trial period?
Can an employee waive their rights regarding dismissal?
The Judgement
The judge gave a very simple answer in response to these questions:
After ordering the employer to pay the outstanding commissions, the judge followed the established position of the Cour de Cassation (France’s highest court in civil and criminal matters), stating that:
“When two successive employment contracts are signed between the same parties, or when an amendment is made to the first contract, the probationary period included in the second contract or amendment can only be considered a trial period. Its termination has the effect of restoring the employee to their previous position.
In this case, given the succession of employment contracts between the parties, it cannot be considered that the first contract was terminated or that the second contract initiated a new probationary period.
Only the first probationary period may be deemed valid… Therefore, the termination of the probationary period that occurred on [date] is irregular and must be reclassified as a dismissal without just cause.”
The Outcome
The judge applied the financial penalties that follow from the termination of the second contract thus reclassified. Our client received a substantial sum and, needless to say, was very satisfied.
