The strict conditions that must be complied with to pay variable remuneration in France

Whilst an employer is perfectly free to offer variable remuneration to an employee, the validity of such remuneration is subject to compliance with a number of conditions developed by the courts, as follows:

– the variation of the remuneration must be based on objectives or targets the accomplishment of which are independent from the employer’s will,

– such variation may not transfer the company’s operating risk onto the employee,

– it cannot result in reducing the total remuneration of the employee below the legal minimum wage.

If any of the conditions is not met, the clause is deemed to be null and void and the court is entitled to fix the amount of the variable remuneration.

A recent case provides an excellent illustration of the strict position adopted by the courts, requiring an appreciation in concreto of the fact that the criteria must not depend on the employer’s will.

In a case of the Supreme Court of 9th May 2019, the employment contract provided for payment of variable remuneration based on 20% of the fees paid for the various cases handled by the employee. However, the fees themselves were those used by the employer for the establishment of the operating account of the Senior Management (direction générale). In addition the employee was not entitled to negotiate or conclude contracts with clients and could not fix the price of the contract. Furthermore, the amount of fees retained by the employer for the purpose of calculating the variable remuneration could vary from one client to the other and thus reduce the amount of remuneration. Therefore, in fact the amount of fees used as a basis for the calculation of the variable remuneration was decided solely by the employer.

The Supreme Court therefore held that the conditions of the variable remuneration were illicit.

Employers should therefore pay particular attention when deciding the manner in which variable remuneration is to be paid, as the risk for the employer in failing to comply with the conditions established by the relevant court decisions is that a more favorable variable remuneration can be decided by the judge should the case go to court.

UK Pensions: beware inheritance tax on pension transfers made shortly before death

UK Pensions: beware inheritance tax on pension transfers made shortly before death

In a recent UK case (HMRC v Parry) the Court of Appeal found that inheritance tax was due on pension benefits which were transferred out of a defined benefits (or final salary) to a defined contribution (or money purchase) scheme shortly before a terminally ill member died.

Following a divorce, Mrs Stavely transferred her rights from a pension she had set up with her ex-husband into a new scheme, and then named her children as beneficiaries, to avoid the benefits being paid under a binding nomination rule to her ex-spouse. Following the member’s death a few weeks later, HMRC applied inheritance tax to the transfer on the basis that it conferred a gratuitous benefit on the children.

The both the First and Upper Tax Tribunals found against HMRC, but the Court of Appeal allowed HMRC’s appeal. The latest decision is now to be appealed in the Supreme Court.


This case highlights the risk for members of making defined benefit to defined contribution transfers where the transferring scheme has a binding nomination rule for death benefits (here this was a section 32 policy but the principle could apply to other arrangements), but the receiving scheme makes distributions under discretionary trusts.

Members (particularly those in serious ill-health, like the member in this case) should beware of potential inheritance tax implications where they transfer their benefits, or delay taking a pension, and do not survive for two more years afterwards. Where a member is terminally ill and is considering making a transfer, tax advice should be sought so that the beneficiaries do not eventually receive an unexpected demand for inheritance tax.

If the Supreme Court were to find for the late member’s beneficiaries, this would be welcomed by families where a scheme member seeks to transfer from a binding nomination scheme to one awarding death benefits under discretionary trusts. Such a ruling would negate the risk that HMRC may seek to levy an inheritance tax charge where such a transferring member, who is in ill-health at the time of the transfer, fails to survive for a further two years. Whilst discretionary trust provisions apply in the vast majority of workplace pension schemes, many historic contract based schemes will be subject to binding nomination rules, so care should be taken.



AARTO ‘Demerit Points’ System – Roadblock for South African Businesses?

A demerit points system will be implemented under the controversial Administrative Adjudication of Road Traffic Offences Bill (AARTO) which could cause both drivers and owners of vehicles to be prohibited from driving altogether for traffic violations.  AARTO has been sent to the President to be signed into law and will officially take effect on a date yet to be decided by the President.

AARTO is geared toward changing driving behaviour and increasing safety on the roads, but it may have significant implications on South Africa’s transport industry, employers and employees at every level.

How it will work 

  • The demerit system will be based on an allocation of points to drivers, on a scale between one and six, for offences contained in the National Road Traffic Act 1996. These points will depend on the severity of the offence committed. Every driver will begin with zero points and accrue points according to behaviour.
  • If an infringer’s points exceed 12 their driving licence will be suspended.
  • If a licence is suspended three times it will be revoked and the driver will need to reapply for a learner’s licence and redo their driving test following the revocation.
  • Points will be reduced by one point every three months.
  • A failure to pay traffic fines can also result in a driver being barred from obtaining driving and vehicle licences as well as being subjected to a number of other penalties

How employers may be affected

  • Where employees are driving company vehicles, AARTO holds vehicle owners, not drivers, responsible for the demerits and associated fines.
  • Employers will need to demonstrate that someone other than the owner or designated driver of the vehicle was driving the vehicle at the time of the offence. This must be done within 32 days of the infringement being served.
  • Where an employee’s duties include driving, the suspension or cancellation of that employee’s licence will clearly have an effect on the employer’s business.  Employers will have to review their existing contracts of employment, collective agreements and policies and procedures to ensure that the necessary incapacity and even disciplinary procedures are in place to deal with employees who are accumulating points or no longer capable of performing their duties as a result of the demerit system.
  • Similarly, if an employee accrues points in their personal capacity outside of working hours resulting in the suspension or revocation of their license, this may potentially impact on the employee’s attendance at the office or the employee’s ability to perform some of their duties (especially if the employee is required to travel during working hours).  Employers will need to have the necessary policies and procedures in place to deal with this eventuality.

What employers must do

  • Although it is not clear when AARTO will come into effect, employers will have to review their terms and conditions of employment and existing policies/procedure documents to ensure that:
    • A valid driver’s licence is a term and condition of employment; and
    • The employer can take quick and decisive action should an employee fail to be in possession of a valid driver’s licence when this is an inherent requirement of the job.

This article was written by Claire Friedman, Candidate Attorney, Norton Rose Fulbright South Africa Inc

L’obligation de tenter de réaffecter un employé incompétent dans un autre poste : une question de faits

Croyez-vous qu’il est suffisant pour un employeur québécois

  1. d’établir des politiques et de fixer des attentes claires à un employé;
  2. de lui signaler ses lacunes;
  3. de lui fournir le support nécessaire pour se corriger et atteindre ses objectifs;
  4. de lui octroyer un délai raisonnable pour s’ajuster; et
  5. de le prévenir du risque de congédiement à défaut d’amélioration de sa part afin de légalement procéder à un congédiement administratif en invoquant l’incompétence ou le rendement insuffisant de cet employé, tel que l’enseignait la Cour d’appel dans l’arrêt Costco?

Ou alors doit-il remplir un sixième « critère », à savoir déployer des efforts raisonnables pour réaffecter l’employé dans un autre poste compatible avec ses compétences?

Les conclusions de la Cour d’appel dans l’affaire Commission scolaire Kativik

Le 31 mai 2019, la Cour d’appel a reconnu qu’il était raisonnable, dans les circonstances de cette affaire, en sus d’exiger de l’employeur la preuve d’incompétence de l’employé, d’exiger qu’il déploie des efforts raisonnables pour le réaffecter dans un autre poste compatible avec ses compétences avant de mettre fin à son emploi… tout en reconnaissant qu’un autre décideur aurait pu décider autrement.

La Cour d’appel rappelle avec vigueur que lorsque les tribunaux supérieurs sont appelés à contrôler le caractère raisonnable d’une décision d’un arbitre de grief, une grande déférence est de mise à l’égard du raisonnement de l’arbitre. De fait, une même situation factuelle peut donner lieu à plusieurs issues raisonnables.

En l’espèce, selon la Cour d’appel, vu les circonstances particulières de l’affaire, il n’était pas déraisonnable pour l’arbitre d’annuler le congédiement au motif que l’employeur n’a pas trouvé une solution alternative raisonnable au congédiement.

La Cour d’appel caractérise cependant cette approche de l’arbitre de « particulière ». À ce chapitre, elle met en exergue le fait que l’employeur a toléré pendant 9 ans le plaignant dans son poste alors qu’il n’était pas qualifié pour celui-ci, lui confiant diverses tâches sans se soucier de son titre d’emploi, tâches dont l’intéressé s’acquittait apparemment de façon satisfaisante.

À retenir

Les employeurs québécois ont tout intérêt à agir de façon proactive devant l’incompétence ou le rendement insuffisant d’un employé en mettant en place un plan d’amélioration de la performance et en respectant les cinq critères susmentionnés établis dans l’arrêt Costco.

Afin d’éviter de se voir imposer l’obligation de tenter de réaffecter un employé dans un autre poste, nous sommes d’avis qu’un employeur devrait notamment éviter de « tolérer » pendant plusieurs années l’incompétence ou le rendement insatisfaisant d’un employé. Dans un tel cas, il semble clair que sa volonté soudaine de prendre en charge la situation pourrait se buter à sa « tolérance » passée et influencer un décideur à retenir qu’il était injustifié de procéder à un congédiement administratif sans avoir au préalable fait d’efforts raisonnables pour le replacer dans un autre poste correspondant à ses compétences.

L’auteure souhaite remercier Hugo Séguin, étudiant au cabinet Norton Rose Fulbright Canada, pour sa collaboration à la rédaction de ce billet.

Keeping your finger(print) on the pulse:  Employer’s warned of the risks associated with the collection of biometric data

The everyday use of biometric technology in contemporary society is nothing new.

We live in a world where we regularly use fingerprint recognition for home security, facial recognition to open our phones and voice recognition to ask Siri to spice up a party by playing the latest Taylor Swift tune.  Despite the significant advancements and prevalence of biometric technology in everyday society, the legality of the use of biometric fingerprint technology in the workplace has been given a thumbs down in a recent case.

A recent Fair Work Commission Full Bench decision has shed light on the obligations and risks associated with the use of biometric technology by employers.  In the first Full Bench decision considering an employee’s refusal to provide biometric data through fingerprint scanning, it was held in Jeremy Lee v Superior Wood Pty Ltd t/a Superior Wood [2019] FWCFB 2946 (1 May 2019) that directing an employee to provide fingerprint data, in circumstances where the employee did not consent to that collection, was not lawful.

The decision is important for employers to consider as it raises questions around data collection, data policies, the storage of data and whether the refusal to provide sensitive information is a valid reason for dismissal.

Continue reading

Sticks and stones may break my bones, but words can sometimes hurt you: Damages for defamation may attach to termination communications

In Booton v Synergy Plumbing and Heating Ltd., 2019 BCSC 276, an employee successfully sued his former employer for wrongful dismissal as well as defamation in relation to statements made by the employer regarding the reasons for his termination.  Booton is a cautionary tale reminding employers to carefully consider how communications about the departure of an employee are worded.


Mr. Booton was a service manager at Synergy.  Synergy had a “Side Jobs and Conflict of Interest” policy prohibiting employees from using company resources to perform side jobs without authorization. The policy stated that such work would be considered a conflict of interest and that non-compliance could result in termination of employment.

It was unclear whether Mr. Booton was aware of the company’s policies, as his offer of employment did not reference them and there was no evidence he was ever told about the policies. He used company resources to engage in side jobs on a number of occasions and was paid personally for that work. Synergy was aware of at least one such side job – however, there was no evidence that Mr. Booton was warned about or disciplined for it, or that the policy was then brought to his attention.

Ultimately, due to a client refusing to pay its outstanding account with Synergy on the basis that it had paid Mr. Booton instead, Synergy dismissed Mr. Booton for cause for breach of the policy.  After Mr. Booton was terminated, the director of Synergy communicated with various employees regarding the reasons for his departure. Among the statements made were that Mr. Booton had been let go because of a conflict of interest, that he had stolen money from the company, that he had done a side job for a customer and the money had not gone to the company, and that he had committed a breach of trust.  Mr. Booton subsequently filed a claim for wrongful dismissal, as well as defamation, against Synergy.


The Court found that Mr. Booton was not aware of the policy, and that even if he had been, Synergy had not disciplined him or warned him that he was in breach despite knowledge of his actions. Furthermore, there was evidence that Synergy had not applied the policy consistently to other employees either.  As a result, the Court found the termination to be wrongful, and awarded 6 months for reasonable notice (from which 1.5 months were deducted to account for lack of mitigation).

Additionally, the director’s statements suggesting that Mr. Booton “stole” or had “stolen” money from Synergy were found by the Court to be defamatory.

Words communicated to others and referring to an individual that would tend to lower that individual’s reputation in the eyes of a reasonable person will be considered defamatory.  One available defence that will allow the speaker to escape liability for defamation is for the speaker to prove that the words were substantially true.

Despite that the director may have felt that what he was saying was true due to the circumstances, the Court observed that his words, viewed objectively, could be interpreted to mean that Mr. Booton stole money, which was defamatory.  The director had not proven that this statement was substantially true.

Conversely, the statements that Mr. Booton was dismissed because of a conflict of interest or because money went to him for a side job were determined to be substantially true, and thus those communications were not considered defamatory.

As Mr. Booton had not proven any quantifiable damage from the statements, the Court awarded $500 in general damages for defamation.  In assessing the appropriate amount of damages, the Court considered that only a small group of people heard the comments, the comments did not adversely affect Mr. Booton’s ability to find subsequent employment, and the statements were not motivated by malice, but rather the director’s honest belief.


It is reasonable for employers to want to answer questions that their other employees or customers may have about a departure. Booton is a reminder, however, to be conscientious about communications in that regard, or risk incurring damages for defamatory statements in any subsequent wrongful dismissal suit an employee may file.

Employers would benefit from ensuring that their statements about an employee’s departure are limited to statements which are provably true and accurately reflect the circumstances.  It would also be wise for employers to limit the audience of such communications only to those who need to know. In Booton, the damages award linked to the defamation claim was relatively small due to the circumstances. However, in a case where the plaintiff successfully quantifies damages, or the comments are widespread or have a demonstrable impact on re-employment, the amount for which an employer may be found to be liable could be much higher.

The author wishes to thank summer articling student Hilary Chu for her help in preparing this article.

UK Pensions: Are you sure you’re not a Professional Trustee?

If you are a pension scheme trustee, there is a risk that you might be considered a professional trustee without realising, and be subject to new standards for professional trustees that were published earlier this year. A new system of accreditation for professional trustees is also being introduced.

Am I a professional trustee?

A professional trustee is defined by the Regulator as “any person, whether or not incorporated, who acts as a trustee of the scheme in the course of the business of being a trustee.” The Regulator would not normally consider a remunerated trustee to meet this definition if they are or have been a member of the scheme, or are or have been employed by or are a director of the sponsoring employer, and they do not act as trustee in relation to any other scheme. For many trustees, being a trustee of another scheme is likely to be the determining factor.

The new standards

The standards apply to all professional trustees and cover areas including fitness and propriety, governance skills, ongoing professional development, behaviour and skills, and managing conflicts of interest. There are additional standards for professional trustees who are the chair of a trustee board, or who are a sole trustee. You can read the full standards here.

The accreditation system

An associated accreditation system will be introduced, which will enable professional trustees to demonstrate they meet the standards, and provide reassurance to those appointing them. This accreditation system is still being finalised, but so far we know that applicants must comply with a ‘fit and proper’ requirement, provide two references, complete the Regulator’s Toolkit, pass the Pension Management Institute’s Level 3 Award in Pension Trusteeship, and complete an online soft skills test.

Once a professional trustee has become accredited, each year they will have to complete an annual attestation stating that they continue to meet the requirements and have completed 25 hours of relevant CPD.

Why is this important?

Many trustees will not realise that they meet the definition of a professional trustee, and therefore fall under the new standards. All trustees should check the full definition to establish this. If you are a professional trustee, you will need to ensure that you comply with the standards, and consider whether you should become accredited.

It is anticipated that final details of the accreditation process (including the structure of the soft skills test and the cost of accreditation) will be released in the next few months. Please click here if you would like to join our pensions mailing list in order to be kept updated on this, and on other pension law developments. 

Treatment of Gig Economy workers in Italy

With another summer approaching, the political and legislative debate concerning the need to update and/or clarify employment laws in Italy relating to Gig Economy workers (See Blog post of July 20 2018)  is still hot.

In 2018, six people who worked for a food delivery company claimed, before the Court of Turin, that they should be considered as “regular, subordinate employees.” The Court of Turin rejected their claims on the basis that their contractual relationship could not be qualified as “regular, subordinate employment” under the relevant laws: They were at all times free to refuse work, or be unavailable to work, therefore having no obligation at any time to perform work.

The decision of the Court of Turin was brought before the Court of Appeal of Turin, which, on January 11, 2019, overturned the lower court decision and made a clear statement regarding this special category of worker in the Gig Economy: They should not be treated a priori as independent contractors.

In making its decision, the Court of Appeal of Turin referred to Art. 2 of the Jobs Act 2015, which states that when the contractual relationship between an individual and the company for which he or she works is characterised by a “personal and continuous performance of work, organised by the employer also with reference to timings and place of work,” then the individual enjoys the rights of a subordinate employee. The Court of Appeal of Turin based its decision on the fact that since the employer plays a fundamental role in organising the work of the individual, the relationship between the two falls within the established subordinate employment relationship regime. As a result, the Court of Appeal of Turin established that the individuals had the right to claim certain remuneration and treatment (such as paid holidays, sick leave and the so-called 13th month salary at year end), as provided for by the National Collective Bargaining Agreement of the Delivery and Logistics’ Sector.

The decision of the Court of Appeal of Turin reinforced the trend to grant Gig Economy workers the rights of subordinate employees, a trend which dates back to 2015 when the Italian Jobs Act was passed.  Several unanswered questions remain, including whether, under the current laws and regulations, these individuals

  • have the right to certain protections granted to subordinate employees regarding unfair dismissal;
  • have the right to be paid for the waiting time between one delivery and another, and if so, how and with what, if any, limitations;
  • who have the option not to answer a call should be treated differently to those who do not have that option.

Some of these questions might be answered by looking back to the Biagi Law of 2003, arguably way ahead of its time, which introduced a type of intermittent employment contract to cover work relationships characterised by discontinuity and other features that we commonly see in Gig Economy work relationships. However, considering that since its passage more than 15 years ago, the Biagi Law has been repealed, reintroduced, remodeled and watered-down, and is today subject to very strict limitations, it may not be a particularly useful reference to resolve the questions regarding the treatment of Gig Economy workers.

One thing is clear. The debate relating to the treatment of Gig Economy workers continues.

Australian minimum wage to be increased by 3% to $19.49 per hour from 1 July 2019

The Fair Work Commission has determined to award Australian workers a 3% increase on minimum wages.

In the Annual Wage Review Decision handed down today, the Fair Work Commission has determined that from 1 July 2019:

  • The national minimum wage and modern award minimum wages are to be increased by 3%.
  • The national minimum wage will be $740.80 per week (or $19.49 per hour).  This gives workers an increase of $21.60 per week compared to the current minimum wage.
  • The casual loading for award/agreement free employees will remain at 25%.  The casual loading in modern awards (save for the Business Equipment Award 2010), will also remain at 25%.

The 3% increase is slightly down on the 3.5% increase awarded last year (from 1 July 2018).  The lower increase was attributed to “changes the economic environment (in particular the recent fall in GDP growth and the drop in inflation) and the tax-transfer changes which have taken effect in the current Review period and which have provided a benefit to low-paid households[1].  That said, the Fair Work Commission is satisfied the 3% increase “will mean an improvement in real wages for those employees who are reliant on the NMW and modern award minimum wages and an improvement in their living standards[2].

[1] Fair Work Commission Statement, Annual Wage Review 2019-19 at [10]

[2] Ibid at [11]

New laws in force to prevent “sharp corporate practices” of employers in avoiding payment of employee entitlements

The Corporations Amendment (Strengthening Protections for Employee Entitlements) Act 2019 (Act) received Royal Assent on 5 April 2019.[1]  The Act amends Part 5.8A of the Corporations Act 2001 (Cth) (Corporations Act) to discourage the use of “sharp corporate practices” used by employers to avoid paying employee entitlements when their business enters winding up, including improper phoenix activity.[2]

Under section 596AB of the Corporations Act, it was already an offence if a person entered into an agreement with the intention of, or with an intention that includes: (i) preventing the recovery of entitlements of employees of the company; or (ii) significantly reducing the amount of entitlements of employees of a company that can be recovered.  Now, a person may also commit an offence if a person is reckless as to whether the relevant agreement will prevent or significantly reduce the recovery of employee entitlements.

Individuals charged and convicted under Part 5.8A of the Corporations Act, can be liable for imprisonment for 10 years or a fine of up to: (i) 4,500 penalty units (today $945,000); and/or (ii) three times the value of the benefits attributable to the offence.  The maximum fine for a body corporate is the greater of: (i) 45,000 penalty units (today up to $9,450,000); (ii) three times the value of the benefits obtained by the offence; or (iii) 10% of the body corporate’s annual turnover in the year leading up to the commission of the offence.[3]

Continue reading