Bankruptcy Law

An employee whose claim does not appear, in whole or in part, on a statement of claims may bring an action before the labor court . In particular, he can challenge the liquidator's refusal to include his wage claim on the statement of claims, even though a previous labor court decision has ordered the employer to pay the sums claimed . He must summon not only the employer, but also the liquidator  …

Omission of a wage claim from the statement of claims

An employee whose claim does not appear, in whole or in part, on a statement of claims may bring an action before the labor court . In particular, he can challenge the liquidator's refusal to include his wage claim on the statement of claims, even though a previous labor court decision has ordered the employer to pay the sums claimed . He must summon not only the employer, but also the liquidator . Article L. 641-14(2) provides that the liquidator summoned before the labor court or, failing that, the claimant, must appeal to the labor court against the wage guarantee insurance (AGS) . The employee may ask the employee representative to assist or represent him/her before the labor court .

The employee's claim is brought directly before the judgment chamber , and not before the conciliation chamber  or the interim judge, where the employee wishes to obtain AGS cover . This exclusive jurisdiction deprives the employee of the option of applying to the interim relief judge for an advance payment . On the other hand, since the judicial court has jurisdiction to hear civil liability actions brought against the liquidator and incidental claims, the employee may not bring the matter before the labor court if he wishes to obtain an order that the liquidator guarantee payment of the sums set in respect of employee claims under the procedure .

In order to avoid being time-barred, claims must be lodged with the labor court within two months of publication of the statement of claims . The liquidator must inform employees by any means of the nature and amount of claims admitted or rejected, indicate the date on which the statement of claims was filed with the court registry, and remind them of the existence and starting point of the foreclosure period . Initially, the Court of Cassation held that the two-month time-limit was triggered by the mere fulfilment of the publicity measures , but then decided that, in the absence of individual notification of employees, the time-limit could not start to run . In this case, the employee does not have to lodge an application for relief from foreclosure within the one-year period following the opening ruling . A letter from the liquidator informing the employee not of the time-limit for the action to contest the statement of claims, but of the time-limit for the action for relief from foreclosure, does not start the first time-limit either .

When the foreclosure period has expired, the employee whose claim has been omitted may be relieved of the foreclosure by the labor court, subject only to taking action to this end within the six-month period stipulated in Article L. 622-26(3) of the Commercial Code , and without having to establish that his default was not due to his own fault . Furthermore, the Court of Cassation has ruled that an employee who brings a claim before the labor court prior to the opening of his employer's insolvency procedure, and which does not appear on a statement of claims arising from the employment contract, must apply for relief from the foreclosure when the procedure is initiated after the expiry of the two-month time-limit, but within one year of the decision to open the insolvency procedure . The expiry of the foreclosure period does not prevent the employee from submitting new claims after his action has been properly initiated .

Lastly, the admission of a claim concerned by a statement of wage claims as a liability in the insolvency procedure, which has not been contested by the employees concerned, is irrevocable and therefore not subject to the five-year limitation period applicable to wage claims . Where part of the wage claim has been paid by the AGS, the employee may only apply to the court to obtain a determination of the balance of his total claim, after deduction of the advance made by the AGS .

C. com. L. 625-1, para. 2, applicable to the court-supervised liquidation procedure by reference to art. L. 641-14.

Cass. soc., 16 December 1998, LawLex202200003982JBJ (LJ).

C. com. L. 625-1, para. 2 and art. R. 625-3, para. 4, applicable to the court-supervised liquidation procedure by reference to art. R. 641-33 C. com.

C. com. R. 625-3, para. 1, applicable to the court-supervised liquidation procedure by reference to art. R. 641-33 C. com.

Cass. soc., 30 April 2002, LawLex202200010009JBJ (LJ).

Cass. soc., 25 June 2002, LawLex202100001521JBJ (RJ) ; 4 December 2002, LawLex202200010011JBJ (RJ) ; 7 February 2006, LawLex202100003551JBJ (LJ).

Cass. soc., 16 December 2008, LawLex202200003979JBJ (LJ).

Cass. soc., 26 February 2013, LawLex202100003552JBJ (LJ).

Applicable to the court-supervised liquidation procedure by reference to art. L. 641-3 C. com.

Cass. soc., 24 January 2018, LawLex202100001522JBJ (LJ).

Cass. soc., 26 March 2003, LawLex202100003553JBJ (LJ).

Cass. soc., 9 November 2005, LawLex202100003554JBJ (RJ).

Cass. soc., 16 December 1992, LawLex202100003547JBJ (RJ).

Cass. soc., 21 November 2012, LawLex202100003555JBJ (LJ).

Cass. soc., 9 October 2019, LawLex202100003532JBJ (LJ).

Institution mentioned in art. L. 3253-14 C. trav.

C. com. L. 625-1, para. 2, applicable to the court-supervised liquidation procedure by reference to art. L. 641-14 C. com.

C. com. L. 625-5, applicable to the court-supervised liquidation procedure by reference to art. L. 641-14 C. com. For an application, see Cass. soc., 29 October 2010, LawLex202100003529JBJ (LJ). Rappr. Cass. soc., 5 December 2006, LawLex202200003995JBJ (RJ), emphasizing that the exemption from the preliminary conciliation procedure applies to a claim for payment made against the transferee company in the same proceedings and for the same indemnity claim as the claim for registration of the claim on the transferor company's statement of claims.

Cass. soc., 4 December 1991, LawLex202200003993JBJ (RJ).

Cass. soc., 4 June 2003, LawLex202100003528JBJ (LJ) ; 23 October 2012, LawLex202100003530JBJ (RJ) ; 29 October 2010, cited above.

Cass. soc., 17 June 1992, LawLex202200003992JBJ (LJ).

Cass. soc., 19 January 2022, LawLex202200000722JBJ (LJ).

Bankruptcy Law

772. Omission of a wage claim from the statement of claims

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772. Omission of a wage claim from the statement of claims

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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