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The production by the employee of a statement written in an identical manner in their presentation and with the same pen for 4 years, is not admissible proof.
A dismissed employee demanded payment from his former employer for the overtime he had worked. He seized the industrial tribunal with an action for payment of the sum of 14,000 euros in respect of unsettled HS for the years 2003, 2004, 2005 and 2006. The employee complained about the judgment of the Court of
Appeal of Nîmes, of having dismissed his request for payment of a sum for overtime based on a statement that he had personally drawn up meticulously.
He argues before the Court of Cassation that in the event of a dispute relating to the existence or number of hours of work performed, it is up to the employee to support his request by producing sufficiently precise elements as to the hours actually carried out to allow the employer to respond by providing his own elements ( article L3171-4 of the Labor Code ).
The Court of Cassation, deferring to the sovereign power of assessment of the trial judge, confirmed that the existence of unrecovered overtime was not established, because the employee “produced the pages of a notebook written in a manner identical in their presentation and with the same pen for the years 2002 to 2006”, which suggested that the summary had been drawn up all at once and not as overtime was worked, which taking into account of the period covered, could not reflect reality.
Consequently, proof of overtime worked over 4 years must be compiled over the days, in order to relate the reality, with, if possible, an indication each time of the reasons for the overtime (type of work file, type of intervention carried out, name of the customer for whom the order is placed, etc.). This makes it easier to cross-check with the accounting department or the after-sales service, and thus prove the achievement of overtime.
Cabinet of Maître DAMY , lawyer at the bar of Nice 2022
