Co-ownership: the delicate dismissal of the concierge (4)

© Jacques Loic / Photononstop

This is not because the condominium removes the position of caregiver (read the three earlier articles of Sosconso), it can dismiss this employee: he can indeed enter the prud "homoge of the jurisdiction to obtain substantial damage and interest due to breach of contract.
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A majority of judges are of the opinion that the syndicate of co-owners, as a private company, should apply the rules of the labor law, and in particular Article L 1233-3, according to which the economic dismissal must be consecutive " economic difficulties ». The Court of Cassation also admitted in a judgment of 29 April 2009 rejecting the appeal of a maintenance worker, in which the economic difficulties of co-ownership were, according to her, "Characterized". It confirmed in a judgment of January 20, 2010 that concierges, in respect of matters that are not covered by their articles of association, are subject to the common law provisions of the labor law.

What are the " economic difficulties » ? A majority of judges believe that these can not be limited to the simple desire to rationalize the management of the building and reduce costs. So there are very few judgments favorable to the condominium unions, according to the study published by Laurence Guégan-Gélinet in the journal Dien.
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VSaved building

Here is one of the few: on 21 February 2013, the Aix-en-Provence Court of Appeal acknowledges that the economic dismissal of the Le Longbeach residence in Grasse (Alpes-Maritimes), March 5, 2010, is after the vote on the abolition of his position by the general assembly of 13 November 2009 based on a real and serious matter. It belongs to the syndicate of co-owners, which states that " the building built in 1978 has never been maintained and it is necessary today to carry out many important works, that the co-owners who are mainly pensioners, whose income does not evolve, are in the making the inability to respond to higher calls for funds, that the balance of the syndicate of co-owners established for the years 2007, 2008 and 2009 confirm the economic imbalance within the co-ownership, that the state of debt and expenditure the 10 September 2010 shows that the cash of the condominium 14681.75 euros for a debit of 17980.70 euros, that the removal of the concierge's post was the only way to finance the inevitable work that the condominium must realize ".

The Court of Appeal notes that, in view of the numerous accounting documents it has received, the syndicate of co-owners is faced with a considerable increase in the compulsory levies. She also notes that replacing the babysitter with a cleaning service saves two-thirds of the costs of babysitting. She rejected the guard of her claim for payment of about 20,000 euros for dismissal without real and serious reason and lack of reclassification.
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EUR 40 000 in compensation

But most of the time the jurors refused to admit that the dismissal is based on a real and serious case, as the following three cases show.

(1) Mrs X was hired in 1984 as a concierge at Lauristonstraat 80 in Paris. In 2006, the co-owners decided to abolish their mail and entrust the maintenance of the common areas and the removal of the dustbins to a specialized company. The trustee informs Ms. X of her resignation for economic reasons, in March 2007. Her resignation letter states " a concern to control the financial costs and to rationalize the monitoring of the building ".

The court of appeal in Paris, which Ms X seizes after the dismissal of the labor court, finds on 31 January 2013 that " the provisions of the labor legislation relating to dismissal for economic reasons apply to the custodians of immovable property under the national collective agreement for guards, janitors and construction workers ". It refers to the cassation judgment of January 20, 2010. It is believed that, in this case, the employer provides no evidence of the economic reasons that made the abolition of the job necessary ". It distributes to the former guardian about 40,000 euros compensation for dismissal without a cause real and serious (39,597 euros).
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EUR 30,000 in compensation

2) Mr. Y, hired in 1995 as a guardian, was fired in August 2009, because the general meeting of co-owners had decided to abolish his post. His resignation letter refers to the decision to reorganization of maintenance and maintenance of common areas ». Mr Y seized the industrial tribunal of Paris, which was dismissed on 7 July 2011, since a syndicate of co-owners is not a company.

The court of appeal of Paris, which he confiscated, was paralyzed on 5 June 2013 and also refers to the cassation decision of 20 January 2010. " she […] Contrary to what the Labor Court stated, the dismissal of Y had to be governed by the general provisions of the labor legislation, in particular those laid down in Articles L 1232-1 et seq. (Dismissal for staff) or L 1233-1 and following (dismissal for economic reasons) of this code and are based on a real and serious cause, sufficiently accurate to be verifiable by the court. "

However, the court of appeal declares, the wording of the letter of resignation, which is completely inaccurate and which prevents judicial review, in fact amounts to a lack of reasons. " She is of the opinion that the unlawful violation of the employment contract entitles Mr Y to compensation of 30,000 euros.
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Regularization of payment of costs

(3) Mrs Z, hired in 1984 as a janitor by the syndicate of co-owners of 11 boulevard Flandrin, on 16 March, was fired on 1 December 2010, the General Assembly had decided to abolish her post. His resignation letter relies on the fact that the co-owners do not pay their expenses and that the money is insufficient: "You are not unaware that this condominium is facing very significant financial problems and that the cash is short, these economic difficulties are formed on the one hand by difficulties in the cash flow and on the other hand by the compelling need to protect the building. making the aging of the co-ownership finances even worse .. The cash position in the 2009 financial year is in fact a loss of 24,840, 46 € and the situation does not improve considerably during the current financial year 2010 … "

The court of appeal of Paris, which takes the guardian after his dismissal by the labor court, refuses to ratify the resignation on 8 April 2014 because "The syndicate of co-owners justifies, and does not even claim, that defaulting co-owners are put on hold to regularize or have attempted the payment of their costs, with respect to them, a procedure of recovery (order for example to pay)". now "This lack of co-ownership can not be detrimental to Mrs Z and can in no way characterize an economic reason justifying her dismissal". The court sentenced the trade union to pay a compensation of 40,000 euros for unreasonable dismissal.
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Reversing case law?

Contrary to what has just been presented, the Court of Cassation suddenly finds on 1 February 2017 that the syndicate of co-owners is not an enterprise and that the dismissal of the caretaker does not fall under the provisions of the code of work. She rejected the appeal (15-26 853) of the concierge at Rue Guiglia 4 in Nice, who protested against her dismissal after 35 years of service.

In the dismissal letter from Groupe Foch Sarl, the manager of the co-ownership, he was only informed that the general meeting had unanimously decided to abolish his post; it has not put forward an economic motive to justify this deletion. By validating the dismissal, the Court of Cassation seems to believe that the decision to abolish the position of caretaker is in itself a real and serious reason to terminate the employment contract.

According to some observers this judgment must be handled with care: Me Laurence Guégan-Gélinet thinks so " the Court intended to apply the syndicate of co-ownership to the case law concerning concierges employed by a person and equated with domestic staff ": Article 12 of the collective labor agreement of the individual employer excludes the application of the specific rules on dismissal. But, observes Me Guégan-Gélinet, the rules for economic dismissal apply to the domestic worker when he is employed by a legal entity, including a real estate company (SCI).

It does not seem to him "It is inconceivable to create a ground for dismissal in view of the applicable employment law rules sui generis: this is not in accordance with the provisions of Articles L 7211-1 to L 7215-1 of the Labor Act determining the deviating status of building guards, or Article 14 of the National Collective Agreement for guards, caretakers and employees of real estate well, nor in Article L 1233-1 of the Labor Code ». She claims one " clarification " from the Court of Cassation.

Faced with these uncertainties, those who want to have the services of the caretaker will be better able to wait for the retirement of the latter, instead of continuing to his resignation.
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Other items from Sosconso: Co-owner: how to remove (or retain) the concierge position? (3)

Co-owner: how to remove (or retain) the concierge position? (2)

or co-ownership: which vote to remove the janitor from the concierge? (1)

or Proof that we have come from the plane: the CJEU has been confiscated

or Happy Holidays!

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