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


© Jacques Loic / Photononstop


This is not because the condominium deletes the position of caretaker (read the three previous articles of Sosconso), it can dismiss this employee: he may indeed enter the jurisdiction prud'homale, in order to obtain substantial damages and interest for breach of contract.
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A majority of judges consider that the syndicate of co-owners, as a private company, must apply the rules of the labor code and in particular Article L 1233-3, according to which the economic dismissal must be consecutive to " economic difficulties ». The Court of Cassation also admitted in a judgment of April 29, 2009, which dismissed the appeal of a maintenance worker, the economic difficulties of the co-ownership being according to her "Characterized". It confirmed, in a judgment of 20 January 2010, that janitors are subject, in matters not governed by their statutes, to the common law provisions of the Labor Code.


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


Here is one of the few: on February 21, 2013, the Aix-en-Provence Court of Appeal admits that the economic dismissal of the guardian of the residence Le Longbeach in Grasse (Alpes-Maritimes), March 5, 2010 , Following the vote of the abolition of his post by the general meeting of November 13, 2009, is based on a real and serious cause. It hears the syndicate of co-owners, which argues that " the building built in 1978 has never been maintained and that it is necessary today to carry out many important works, that the co-owners who are mainly retirees, whose incomes do not evolve any more on the rise, are in 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 statement of debts and expenses established the September 10, 2010 shows that the cash of the condominium amounted to 14681,75 euros for a debit of 17980,70 euros, that the removal of the post of concierge was the only way to finance the inevitable work that the condominium must realize ".


The Court of Appeal notes, in view of the numerous accounting documents provided to it, that the syndicate of co-owners is faced with a significant increase in compulsory charges. She also notes that replacing the babysitter with a cleaning service saves two-thirds of the babysitting expenses. She dismissed the guardian of her claim for payment of some 20,000 euros for dismissal without real and serious cause and lack of reclassification.
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40 000 euros in compensation


But most of the time, the judges refuse to admit that the dismissal is based on a real and serious cause, as the following three cases show.


(1) Ms. X was hired in 1984 as a janitor at 80 Lauriston Street in Paris. In 2006, the co-owners decided to abolish his post and entrust the maintenance of the common areas and the disposal of the trash cans to a specialized company. The trustee notifies Ms. X of her dismissal for economic reasons, in March 2007. Her letter of dismissal mentions " a concern to control the financial costs and rationalization of the guarding of the building ".


The Paris Court of Appeal, which Ms. X seizes after being dismissed by the Labor Court, finds, on January 31, 2013, that " the provisions of the Labor Code relating to dismissal for economic reasons are applicable to the custodians of immovables subject to the national collective labor agreement for guards, concierges and building employees ". It refers to the cassation judgment of 20 January 2010. It considers that, in this case, the employer does not provide proof of the economic reasons which necessitated the abolition of the position ". It allocates to the former guardian some 40,000 euros compensation for dismissal without 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 dismissed in August 2009, the general meeting of co-owners having decided to abolish his post. His letter of dismissal refers to the decision to reorganize the maintenance and maintenance of common areas ». Mr. Y seized the industrial tribunal of Paris, which, on July 7, 2011, dismissed, considering that a syndicate of co-owners is not a company.


The Paris Court of Appeal, which he seizes, crippled, on June 5, 2013, also referring to the cassation ruling of January 20, 2010. " he […] As a result, contrary to what the Labor Court has stated, the dismissal of Mr Y had to be governed by the general provisions of the Labor Code, in particular those laid down in Articles L 1232-1 et seq. (dismissal for personnel) or L 1233-1 and following (dismissal for economic reasons) of this code and be based on a real and serious cause, sufficiently precise to be verifiable by the court. "


However, states the Court of Appeal, the wording of the letter of dismissal, which is totally imprecise, and which prevents any verification by the court, is in reality equivalent to a lack of reasons. " It considers that the abusive breach of the employment contract entitles Mr. Y to an indemnity of 30,000 euros.
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Regularization of payment of charges


(3) Ms Z, hired in 1984 as a janitor by the syndicate of co-owners of 11 boulevard Flandrin, Paris 16th, was dismissed on 1 December 2010, the General Assembly having decided to abolish her post. His letter of dismissal invokes the fact that the co-owners do not pay their expenses, and that the cash is deficient: "You are not unaware that this condominium faces very significant financial problems and that its cash is deficient. These economic difficulties are constituted, on the one hand, by cash flow difficulties, and, on the other hand, by the imperative necessity to undertake work of safeguarding the building whose cost aggravates the already obsolete finances of the co-ownership . The cash position in the 2009 financial year is in fact a loss of 24,840, 46 € and the situation does not improve substantially over the 2010 financial year in progress ... "

The Paris court of appeal, which the guardian seizes after being dismissed by the labor tribunal, refuses, on April 8, 2014, to validate the dismissal because "The syndicate of co-owners does not justify, nor even argue, to have defaulting co-owners put on hold to regularize the payment of their charges or have tried, concerning them, a procedure of recovery (injunction to pay for example)". Gold, "This lack of co-ownership can not be prejudicial to Mrs Z and can not, in any case, characterize an economic reason justifying her dismissal". The court sentenced the union to pay him 40,000 euros compensation for unfair dismissal.
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Reversal of jurisprudence?


Contrary to all that has just been presented, the Court of Cassation suddenly finds, on February 1, 2017, that the syndicate of co-owners is not an enterprise, and that the dismissal of the concierge is not subject to the provisions of the code work. She dismissed the appeal (15-26 853) from the caretaker at 4 rue Guiglia in Nice, who was protesting against her dismissal after 35 years of service.


The letter of dismissal sent to him by Groupe Foch Sarl, the property manager of the co-ownership, only indicated to him that the general meeting had unanimously decided to abolish his post; it did not invoke any economic motive to justify that deletion. By validating the dismissal, the Court of Cassation seems to consider that the decision to abolish the post of janitor constitutes in itself a real and serious cause of termination of the employment contract.


According to some observers, this judgment should be handled with care: Me Laurence Guégan-Gélinet thinks that " the Court intended to apply to the syndicate of co-ownership the case-law concerning concierges employed by an individual, and who are assimilated to domestic servants ": Article 12 of the Collective Agreement of the individual employer excludes the application of the specific rules on redundancy. But, observes Me Guégan-Gélinet, the rules of economic dismissal become applicable to the domestic employee, when employed a legal person, including a real estate company (SCI).


It does not seem to him "It is inconceivable to create, in view of the rules of labor law currently in force, a ground for dismissal sui generis: this does not comply with the provisions of Articles L 7211-1 to L 7215-1 of the Labor Code determining the derogatory status of building guards, or Article 14 of the National Collective Agreement for guards, concierges and employees of real estate, nor in Article L 1233-1 of the Labor Code ». She claims a " clarification " of the Court of Cassation.


Faced with these uncertainties, those who want the services of the janitor will have better wait for the retirement of the latter, rather than proceed to his dismissal.
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Other articles from Sosconso: Co-ownership: how to delete (or keep) the concierge position? (3)


Co-ownership: how to delete (or keep) the concierge position? (2)


or Co-ownership: what vote for the removal of the janitor's post? (1)

or Prove that we got off the plane: the CJEU seized


or Happy Holidays !



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