For twenty months, a teacher from Dübendorf, Switzerland, received a salary that she should not have received. In total, the City made up for around 36,000 Swiss francs in error (nearly 38,000 euros) to this teacher who no longer occupied the position for whom she continued to be paid. The professor refused to reimburse them, saying that she had already spent the amount and that she was unaware of the error. After several appeals, the Federal Court has finally decided: it must return the money. But in the event of an overpayment in France, what happens? 20 Minutes Take stock for you.
Should we make a salary paid by mistake?
Yes. The Civil Code is clear: “All payment supposes a debt; What has been received without being due is subject to restitution ”(art. 1302-1). In other words, the employee who has mistakenly perceived a sum has no right to keep it, even if the fault comes from the employer. “This obligation stems from the principle according to which no one can be enriched unjustly to the detriment of others,” explains Le Bouard.
Can we invoke the negligence of the employer?
Not really. The fact that the error comes from the payroll service does not change anything legally. According to the principle of unadorned enrichment, keeping money would constitute an unjustified enrichment. “In law, the error is never creative of rights,” recalls the ADP site, a company specializing in payroll management solutions and human resources. The Court of Cassation confirmed that, except in special cases, the employer can still claim the reimbursement (Cass. Soc. October 20, 1998, n ° 96-41698). On the other hand, the Court of Cassation considers that using it “must not contest a payment which it made voluntarily (Cass. Soc. October 20, 1998, n ° 96-41698, BC V n ° 434)”, specifies the site of the ADP.
What remedies for the employer?
The employer has three years to claim the sums unduly paid (art. L.3245-1 of the Labor Code). He can offer an amicable refund, for example via a schedule. He can also practice a deduction on salary, but it cannot exceed 10 % of the net salary per month without written agreement of the employee. If the employee has left the company, the employer will have to seize the industrial tribunal to obtain the reimbursement. After this period of three years, the sums unduly paid can no longer be recovered, except in exceptional cases like a proven fraud.
What does the employee who refuse to repay?
In case of refusal, the dispute is resolved. The employer has almost always succeeded. The employee will therefore have to return the sum, often adding the legal costs inherent in the procedure.