What is the impact of partial activity on the calculation of bonuses and severance pay?

The law does not provide a direct answer to the questions that may arise regarding the calculation of bonuses in case of partial activity. The same applies to the calculation of severance pay when, during the reference period, the employee has been in partial activity.

The answer is in principle given by the text which establishes the bonus benefit as well as for certain bonuses and for severance pay, by the jurisprudence.

 

I. The calculation of the seniority bonus and 13th month

The labour judges were indeed asked to decide on the calculation of a seniority bonus and a 13th month bonus.

For the seniority bonus, the judges considered that when the collective agreement provides for a seniority bonus calculated on actual salaries, the amount of partial unemployment benefits that have substituted for salary should be included in the basis of the calculation of this bonus.
Cass. Soc. 16-1-1992 No. 88-43.631 (No. 206 P), Sté des settlements  Holleville  v. Beauchamps

This solution can be converted to any bonus calculated real salaries: 13th month bonus, vacation bonus, etc.

In addition, judges confirmed that partial operation benefits, which replace wages, should be included in the salary base used to calculate the 13th month bonus.
Cass. Soc. 26-11-1996 No. 94-40.266 (No. 4507 P), SARL Euro aluminium c/Elourba

Cass. Soc. 4-7-2007 No. 06-42.322 (No. 1573 FS-D), Sté Trigano MDC c/  Vovard

The position of the Labour law is to consider partial operation benefits in the calculation of the seniority bonus and 13th month bonus, if their calculation is made on the basis of real salaries.  

 

II. The severance pay calculation

For the severance pay calculation, it was considered that the reference salary could not be determined by withholding, for the months in which the employees had been placed in partial operation, the only wages and unemployment benefits which had been paid to them at that time and which represented in total only a part of their monthly wages. As partial unemployment benefits replace wages, the remuneration used as the basis for the calculation of severance pay is the compensation that the employee would have received had he not been partially unemployed.          
Cass. Soc. 5-5-1988 No. 85-45.334 (No. 1659 D), Fas c/ Dorn.

Cass. Soc. 27-2-1991, two stops: No 88-42.705  (No. 860 P), SA  Arbel  Fauvet Rail c/  Chirat, and No 87-45.867  (No. 861 D), SA  Arbel  Fauvet  v. Desportes  

The Court of Cassation gives reason to the judges to have calculated the legal severance pay according to the salary which each employee would have received if he had not been placed on partial unemployment during the reference period but had worked full-time.

In the same way, partial unemployment does not have the effect of altering the employment contract, the remuneration used as the basis for calculating the conventional severance pay  must be the one that the employee would have received if he had not been in partial operation.
Cass. Soc. 9-3-1999 No. 96-44.439 (No. 1085 P),  Ducrozant  v. SA  Eternit

 

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