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(en) France, Alternative Libertaire AL #243 - Right: The establishment of the employment relationship By Jean-Luc Dupriez defender CGT union (fr, pt) [machine translation]

Date Mon, 03 Nov 2014 15:04:13 +0200


Serge [ 1 ], 24, responding to an offer of employment center, made contact with the owner of a fast food restaurant. The employer asked him to do a professional two-day trial. Obviously he refuses to pay for the two days of work. However, he proposes to hire part-time - 18 hours per week without an employment contract is signed. At the end of the month, the employer gives Serge a payslip and promises him his check for a few days. During his rest, Serge grabs a gastro... He sends his sick a week judgment to be extended for a second week. At the end of his sick leave, Serge returns to his job, but the employer sends roses, told him to go away and refuses to pay her hours worked. At the hearing of the tribunal conciliation, the employer claims to have never used Serge and the payroll is a fake. Labor law applies only if the employee performs work on behalf of the employer in the context of a relationship of subordination, that is to say, when the employee must comply with the guidelines of the employer.

Generally, the relationship of subordination is assumed to exist when a labor contract was written, even when pay slips are issued. In the case of Serge address the shortcomings of the employer, two legal issues arose:

what is the status of the two-day professional test imposed by the employer?

show how, in the face of false accusation, the existence of an employment relationship?

In the absence of legislation, case law governs professional tests: this can only be a short-term test in principle "a few hours". This should not lead to active participation in the company's business by applying "directed by [the employer] without being able to freely go about their own business." Obviously, the first two days of work have been paid and more, the absence of labor contract that Serge should be considered permanently hired in the first hour of this "professional test" (no period possible test without a contract). But Serge does not have evidence establishing the conditions of this test, the payment of this work was not even asked at the "referral" of the Labour Court. On the second point, the employer would have been a very simple way to demonstrate that the payroll was a fake: a statement from their accountant saying he had not written the payroll. But he refused to make a fake and the employee who produced more testimonials from former employees saying he worked in the company with Serge and giving details of the terms of this work, the relationship was no longer working subsequently challenged. The hearing on the merits is scheduled for October, but Serge has no chance of being reintegrated into the workforce. At most he will get compensation.


[ 1 ] The name was changed
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