Recharacterisation of a fixed-term employment contracts : not so simple

Question of social right. Dozens of the successive contracts of the replacement with the same employee, they have to automatically lead the judge prud homal to re-qualify the whole of a contract of indeterminate duration (CDI) ?

The case-law of the Court of cassation was up to this steep : these successive fixed-term contracts “with the same qualifications, the same salary and similar duties” were necessarily depending on it to “fill a structural need for labor” (CS, 2 June 2010). They were therefore systematically re-qualified in CDI, in application of the general principle laid down by article L. 1242-1 : “Whatever his motive, a CDD [fixed term contract] may have neither the object nor the effect to fill durably a job related to the normal and permanent activity of the company. “

This article transposed the directive of 28 June 1999 on fixed-term contracts, recalling that “the benefit of the stability of employment being a major element in the protection of workers, IDUS are the general form of the working relationship” ; and, anxious to “prevent abuse arising from the use of xed-term contracts successive” demanding that the judge verifies ” the objective reasons justifying the renewal of such contracts “.

Approach very realistic

But in case Bianca Kücük January 26, 2012, the Court of Luxembourg had opted for an approach very realistic. In a company employing hundreds of employees, ” it is inevitable that replacements temporary are frequently needed, in particular because of the unavailability of employees benefiting from sick leave, maternity, parental or other “. When ” each of the contracts, taken individually, was concluded in order to ensure a replacement of a temporary character “, the fraud is not automatically proven : because it is not surprising that an employer who has…

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