Employment Lawyer
Maître Zakine, an employment law specialist, analyses the case law.
Here she explains why the form of the contractual termination is as important as the substance.
Don't hesitate to make an appointment an initial consultation with her online if you encounter a difficulty.
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Based on two judgments handed down by the Social Division of the Court of Cassation on 3 July 2019 (no. 17-14.232 and no. 18-14.414, published in the Bulletin)
Dismissal, termination of employment, judicial resolution, resignation and contractual termination are the different ways of terminating a contract. employment contract provided for in the Labour Code.
Case law has thus refined the rules in this area.
This is what it did with regard to the conventional termination of employment, ruling that it is not enough for the CERFA form to mention that the termination agreement was drawn up in two copies. A copy of the agreement must also be given to both parties.
This is what the Court of Cassation indicated in its two particularly important judgments, which were published in the Bulletin des arrêts de la Chambre sociale.
This is therefore a formal requirement that conditions the validity of the contractual termination and will enable one of the parties to request the nullity of the termination in the event of non-compliance.
But the judges go even further, since they require that this handover be recorded in writing, which will have an evidentiary effect, particularly in court in the event of an application for nullity.
The second case (no. 18-14.414) will allow the Court of Cassation to offer an additional clarification.
However, the judges of the Cour de cassation considered that if a copy is not signed by one of the parties, the withdrawal period could not start to run. It is at the end of the withdrawal period that the employer sends the termination agreement to the DIRECCTE (Labour Inspectorate).
It should be remembered that both parties have a right of withdrawal within 15 days of signing the agreement.
In these circumstances, the absence of the employer's signature on the copy given to the employee vitiated the procedure as it prevented the withdrawal period from starting to run.
For this reason, the Court of Cassation considered that only the delivery to the employee of a copy of the agreement signed by both parties allowed the employer to request its homologation and to exercise his right of withdrawal.
To summarise the two rulings and draw the necessary legal consequence, each of the parties must keep a copy of the signed termination agreement, on pain of nullity of the act.
This is a substantial formality that can have major consequences, since a conventional termination agreement can be contested for a period of 12 months from the date of its approval by the DIRECCTE.
This type of termination often appears to be a simplified legal mechanism, but these two judgments illustrate that a certain amount of litigation can be generated by such a termination of the employment contract.
The firm will assist you with all the questions that may arise in the context of a contractual termination.
