The AGS guarantee is not unlimited.
In the context of a judicial recovery followed by liquidation, the AGS guarantees salaries within the limit of 45 days of salary in amount and duration.
By salary, we must understand everything that is not not compensation (notice, paid leave, severance pay, etc.) and therefore only the active salary before dismissal.
Until September 9, the AGS did not guarantee remuneration (Milee was then in a period of receivership and therefore in an observation period, Milee paid salaries).
The AGS then only guaranteed paid leave (which sometimes explained two separate transfers for remuneration and for leave, for example).
The AGS does not cover salary (just paid leave), the 45 days were therefore not used up, the guarantee therefore remained total at this level.
The first salaries taken into account were on the date of the judicial liquidation and therefore last September 9.
This therefore concerned the August salary which should have been received on September 1st.
For distributors, it represents activity from July 8 to August 11. For non-distributor employees, activity from August 1 to 31.
From July 8 to August 31, more than 45 days have passed.
So you see us coming… July 8 + 45 days = August 22 = end of warranty.
This problem was raised at one point and then brushed aside, but the AGS maintains this position and always indicates that it will be limited to its guarantee limit.
As nothing is ever simple, it should however be noted that this guarantee is limited in duration (45 days) AND in amount (1.5 times the salary).
In a sudden excess of generosity which followed the intervention of the Minister of Labor, the AGS agreed to ultimately retain only the lock of the amount.
But with for example a salary of 1,000 euros, 45 days gives 1,500 euros and 1.5 times the salary also gives 1,500 so…
But, in its great wisdom, the AGS still agrees to grant an advantage, because the amount of salary used for the calculation is an average of the last 12 months, which can benefit the employee if the average is higher than the salary of base.
For those who were dismissed before August 22, there are few problems, they have been on notice since receiving the dismissal letter and the notice is taken care of. They are therefore not concerned.
But for those who were dismissed after this date (August 22), and there are many of them, the salaries indicated on the pay slips are higher than the amounts received by transfer.
We are talking here about distributors because for others whose salary is based on the calendar month, the guarantee could extend until October 15 (September 1 + 45 days), but again, the date is only indicative to find your position more easily since the limit of 1.5 times the reference salary applies.
As nothing is decidedly simple, if an employee has taken leave since July 8 for a distributor and since August 1 for a non-distributor, this period shifts the guarantee accordingly since the leave is always paid separately and not affected by the limitation.
Thus, still for the example if an employee lost 3 weeks of salary due to the guarantee limit, he would only lose 2 if he had used 1 week of leave during this period.
Obviously, it does not seem possible or at least not acceptable that the 5,000 employees for example who were not provided for in the PSE and who were dismissed around September 20, would not be paid a month's salary, and Yet…
Concretely, they have a pay slip which indicates the entire amount, but only receive part of it.
The unpaid portion would be recorded in the company's liabilities and probably never paid due to lack of money in the liquidation account.
A certificate will be issued by the liquidator to justify the absence of this sum from the tax administration.
Of course, the employee can try to seek the deficiency before the Industrial Tribunal, but this is a legal limit (Article L.3253-8 of the Labor Code) that the judge cannot remove. with the flip of a sleeve. It will therefore be necessary either to call into question the insufficient responsiveness of the judicial administrator, or to have this lack of salary compensated by compensation in damages for example, but nothing is won in advance, the AGS here only applying the law.
We were therefore waiting for the September pay slips to see how the payment was processed.
And many of you are noticing a difference between the net pay slip and the transfer received for September. In most cases it is the effect of this guarantee limit which is the cause.
In the judgment converting the receivership into liquidation dated September 9, the delay in the decision and the exceeding of the AGS guarantee period are mentioned and the receiver was well aware of this difficulty.
This delay is in no way the fault of the employees since we now know that the company ran out of cash but that the withholding mentioned (Parcel Privé) and finally paid before the liquidation was in any case not sufficient to allow payment salaries.
The situation should therefore have been anticipated and the responsibility of the company (which undoubtedly still produced fanciful forecasts, as usual), of the judicial administrator (who did not carry out the necessary checks) and more generally legal agents are hired.
Of course, the CAT, in particular, as we can hope that other unions will also do so, will stand by your side to initiate the necessary litigation.
We will also soon have to tackle the recognition of the management errors of which the shareholders, Eric Paumier, Frédéric Pons and Guillaume Salabert, are guilty, who, from our point of view, organized the current situation. They will have to take responsibility for it, and even if we know that it will be long and difficult, we will put all the energy and means necessary to ensure that our dismissals are, due to the personal responsibilities of the managers, declared illegal and that each employee involved can receive fair compensation.
We will also have to offer you the opportunity to join the process.
To avoid questions, we repeat that those who were dismissed before August 22 are not or only slightly affected.
And for those who were dismissed after August 22 (knowing that it is 1.5 times the salary that really counts), the disputed period is that included between August 22 and the day of first presentation of the dismissal letter. So, to save us time, we are counting on you to avoid questions like “ and I was laid off on August 28, so how much does that make?“, you all know how to count and you can find the answer for yourself.
Details:
- The 21-day period for CSP reflection is added to the guaranteed period.
- This guarantee limit does not affect notice, severance pay and paid leave.
- If the employee has used paid leave during the guarantee period, this leave is added to the guaranteed period.
- For example, 12 days of leave generates a paid period of approximately 57 days.
- So, if you were on leave in the August pay period, you reduce the unpaid period.
For employees outside distributors, the guarantee limit also applies since the covered period began on August 1 and therefore ends on September 15. For employees who are not yet in the notice period, the guarantee therefore ends around September 15.
Below, the official communication from the AGS:
“Faced with the confusion caused by the application of salary guarantee ceilings, in particular due to the deductions applied to September salaries, the AGS has implemented an explanatory note making it possible to understand the calculation method applied.
As a reminder, in accordance with the provisions of article L.3253-8-5° of the labor code, AGS only covers “the sums due to employees during the observation period up to a maximum amount corresponding to one and a half months of work. »
Although the salary slip mentions the entire salary due to each employee, the application of the guarantee ceiling as provided for by the aforementioned provisions does not allow the AGS to cover salaries subsequent to the judicial recovery and costs ( incidental remuneration) only within the limit of 1.5 times the reference salarywhich corresponds to the average annual salary and in the same way for all employees.
No lifting of the aforementioned deadline nor any extra-legal redundancy bonus has been granted by the AGS.
The AGS guarantee will therefore be limited to notice pay, paid holiday pay, legal severance pay (in compliance with contractual, conventional and legal provisions) and salaries within the limit of the ceilings usually practiced as for any judicial liquidation procedure. »
