Do we always have to agree to work overtime? Yes but no… The law provides that an employer can ask his employees to work up to 220 hours of overtime per year, unless a company agreement or a branch agreement provides for another quota of overtime. In theory, the refusal to work overtime, if it is anticipated and regularly paid, therefore constitutes a reason for dismissal.
Except that … last week, the Court of Cassation ruled that a dismissal based on this sole reason was unfair.
Overtime must not change the usual working time
A craftsman imposed on an employee nearly an additional hour per day, which amounted to making him work 39-hour weeks instead of 35 hours. The requirement for overtime is part of the normal performance of the contract, he assured, and the employee cannot refuse to work. For this reason, he had dismissed a worker who left his post at the time initially agreed without working the overtime.
Justice proved him wrong: overtime may certainly be required, the judges explained, but not diverted to increase working hours. Because it would be a modification of the contract which cannot be decided without the agreement of the employee.
The systematic use of these hours exceeds what the employer can demand by his power of direction, ruled the Court. It is therefore permissible to refuse to work overtime if it has become systematic to the point of modifying the usual working time and therefore the employment contract, she continued.
The employee, dismissed for his disobedience, was therefore deemed to be the victim of an unfair dismissal and was compensated.
Source: Le Progrès : info et actu nationale et régionale – Rhône, Loire, Ain, Haute-Loire et Jura | Le Progrès by www.leprogres.fr.
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