“the prud’hommes invent free wages!” denounce his lawyer
The Labor Court of Toulouse (Haute-Garonne) condemned, on December 20, 2022, the employee of a restaurant to reimburse all of his wages, considering that he had no one above him to give him instructions. The judge therefore considers his employment contract as “fictitious”.
Master Christophe Marciano still can’t believe it. On December 20, 2022, the Toulouse industrial tribunal dismisses his client Mr. Alex V.’s request for judicial termination of his employment contract and condemns him to reimburse his wages received in the amount of 12,000 euros. “JI’ve never seen that, exclaims the amazed lawyer specializing in labor law. It’s almost a joke. The Labor Court of Toulouse invents free wages!”
In March 2018, Alex V. signed a part-time contract as a bursar – the one who ensures the supply and the state of stocks in a hotel or a catering service – in a Vietnamese restaurant in Toulouse. “The owner of the establishment is a former notary, says Christophe Marciano. Not involved in the organization of the restaurant, so it is my client who took care of everything.”
Alex V. manages the opening and closing of the store, signs professional contracts, orders, holds the cash register. “He exceeded his dutiescomplete his lawyer, because he had no one above him to carry out these missions.“
But a year later, The boss accuses him of stealing from the till and tells him never to come back again. Me Marciano seizes the prud’hommes to make recognize the verbal dismissal of his client.
A dismissal disputed by the former notary. His lawyer will even advance an astonishing reasoning before the Labor Court. According to him, Alex V. doing what he wanted in the restaurant, which would be proof that he had no no relationship of subordination and therefore, he would not be an employee of the restaurant…
To everyone’s surprise, it’s this argument that will be retained by the judge who decides: “M V acted perfectly autonomously without any interference, injunction or directive of the president of the company, organized his working days freely, his working time not being subject to any control, and presented himself in the eyes of third parties as the real “boss” and the sole representative of the company. Therefore, these elements contradicting the existence of a relationship of subordination which is the defining characteristic of a salaried employment relationship, Mr. V’s employment contract must be considered as fictitious.“
This judgment leaves Master Christophe Marciano speechless: “UN one-page judgment where we do not even dismiss the employee, but who is asked to reimburse his wages, it’s just incredible. To justify this, he puts forward a case law that exists, but which concerns managers, owners, who have paid themselves salaries and employment contracts. This is fictitious employment or disguised employment. But my client is not the owner of the establishment, he was only an employee! He had even received a new full-time contract before being fired.“
Faced with this grotesque decision, Alex V. and his lawyer have already appealed. Contacted, the owner’s lawyer, MaĆ®tre Alfred Pecyna, had not yet replied to us at the time of publication of this article.