How to enter into a contractual termination to break a CDI amicably by mutual agreement between employer and employee. The formalities of the contractual termination based primarily on negotiation. The procedure to properly implement this device that functions as a kind of agreed termination.
- 1 Definition
- 2 our video
- 3 Advantages
- 4 reasons
- 5 terms
- 6 Procedure
- 7 Refusal
- 8 convention
- 9 Approval
- 10 Effects
- 11 contestation
- 12 Harassment
- 13 See also
Conventional ruptured CDI allows to terminate the employment contract by mutual agreement between the employer and the employee. Specifically provided for in the Labor Code, the conventional break has its own legal system: it is neither a resignation at the initiative of the employee, or a dismissal at the employer's initiative.
In practice, it was already common to see employees and employers to agree to end the work contract negotiated departure, agreed termination, etc. Established within the Labor Code in recent years, the conventional break came clarify and regulate these long-standing practices.
The reform of the 2017 Labor Code allows employers and employees to reach a collective contractual termination. The following rules concern the individual contractual termination.
droit-finances.net councils, with Michel Godest, lawyer in Paris
Conventional breaking an advantage for each signatory. Employers and employees can each find their account.
For the employee who wants to leave the company, it is much more advantageous than a resignation since the employee will receive much larger severance payments (the least equal the legal or contractual termination benefits) then while receiving unemployment benefits, this rarely allows a resignation (except for resignations entitling unemployed).
From the perspective of the company, the procedure is much less severe than that provided for the termination, which requires strict compliance with deadlines and procedures laid down in the Labor Code. In addition, the grounds required by labor law to dismiss an employee can be difficult to justify legally. For the employer wants the departure of an employee without risking a lawsuit later, the conventional break then an alternative measure that much less likely to be challenged in a labor court dismissal.
In practice, the conventional break is not just for big companies, quite the contrary: almost a quarter of conventional failures concerns TPE (under 10 employees).
Benefits that explain the success of a procedure (334,000 conventional failures for only 2014 statistics from the Ministry of Labor, and nearly 2 million conventional failures signed since 2008) whose conditions of implementation are relatively simple to meet.
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In companies, the conventional failures are usually concluded for the following reasons:
- the employee is in disagreement with its hierarchy;
- the content of work or wages are no longer suitable to the employee;
- the employee wishes to carry out a personal or professional project (business creation, for example);
- more generally, where the company wants to separate an employee but that his dismissal prove risky if from a legal point of view: the company then began the proceedings with the employee to negotiate his departure.
But many other causes can explain a request for contractual termination: the motivation of the employee, age or health reasons, new management methods, etc. If it meets the legal conditions that follow the conventional breach has, in any case, not be motivated to be validated.
For the Supreme Court (Case No. 11-22251 social room of 15 October 2014), the rupture of a CDI by an agreement between an employer and an employee may only occur in the context of a conventional break . The parties can not therefore conclude amicable break out of this legal framework. For the courts, breaking mutual agreement that does not respect the conditions and contractual termination procedure following should be reclassified as a dismissal without real and serious cause.
The procedure is only applicable to permanent employees (permanent contract). Those in CSD therefore can not claim it, but nothing prevents them to terminate the employment contract by mutual agreement with their employer without resorting to conventional break. View and amicable break a CSD: What benefits?
Conventional break can be implemented by all employers and all permanent employees, including employees "protected" (Stewards, steward, etc.). So there is no condition related to the size of the company or seniority requirement (although the latter will be taken into account to calculate the amount of the contractual severance payment due to the employee).
The signing of the agreement naturally presupposes the free and full consent of both parties. The procedure put in place must protect the free will of the employee. The choice of the latter should not be guided by a stress exerted by the employer (see below the case of harassment for example pressure from the company).
Company in difficulties
The fact that the company encounters financial difficulties did not prevent to conclude a contractual termination.
However, this procedure can not be implemented by the company with the aim of circumventing the obligation to draw up plan to safeguard employment.
Sick leave or
Courts treat conventional rupture can be reached when the employee is on sick leave. The same is true of agreements made when the employee is on parental leave, sabbatical or unpaid leave.
Recent case law further states that a conventional termination may even be concluded during a work stoppage following a work accident or an occupational disease (Case No. 13-16297 of the Social Chamber of the Supreme Court of 30 September 2014).
Also according to case law, the protection of pregnant women does not preclude a contractual termination during maternity leave.
Conventional break does not apply to departures voluntary retirement. The employee concerned can not claim any compensation therefor.
No legal provision is opposed to the signing of a conventional breach by an employee on parental leave. The agreement is lawful, even when it is concluded during the leave ... provided, of course, other rules of validity of the contractual termination are met.
Often, an employer who wishes to separate from an employee hesitates between a conventional termination procedure and a dismissal procedure. It can, for example, start one then eventually change his mind and opt for the other and vice versa. The jurisprudence has elaborated on the relationship between these two procedures via three judgments of 3 March 2015.
In its first judgment (No. 13-20549), the Supreme Court accepted that it was possible to conclude a contractual termination after notification of dismissal. By signing the agreed termination agreement, the employee and the employer are therefore considered to have abandoned the dismissal.
In a second stop (No. 13-15551), the High court recognizes the right of the employer to take disciplinary proceedings for dismissal after exercise by the employee of his right of withdrawal of conventional rupture. After the waiver, the employer can always reconvene the employee prior to termination of maintenance.
Finally, in a third case (No. 13-23348), the Supreme Court said that the signing of a conventional termination does not interrupt the two-month limitation period for which disciplinary action may be taken against an employee for a fact at fault. Therefore, if the conventional termination procedure fails, the employer must of ensuring compliance with the limitation periods before sanctioning his employee.
The conventional termination procedure is not applicable to civil servants or contractual. Only private sector employees are concerned. According to a ministerial response of the Minister of Decentralization and Public Service of 24 March 2015, this failure can be explained by the objective of protecting public money and a desire to ensure the equality of all contract employees.
The conventional termination procedure is not regulated by law. Nevertheless, it is based on some essential steps.
The conventional termination request can be initiated by both the employer and the employee. This request is not necessarily written: it can be made orally. But in practice, it is advisable to an employee who wants to leave the company to address a conventional termination request letter (see our free model) to his employer by mail or hand delivered letter.
Agree to negotiate does not mean accepting the contractual termination. Each party is free to enter into negotiations and to accept or reject the claims of the other.
If agreed in principle to the idea of engaging a conventional termination, both parties must first agree to its terms in one or more prior interviews. There must have been at least a minimum maintenance. A conventional rupture signed without maintenance should be considered void. It is the party invoking this void prove that no interview has taken place (Case No. 15-21609 made by the Social Chamber of the Supreme Court on 1 December 2016).
If holding at least one interview is required, however the law does not require special convening notice for a conventional termination of maintenance. However, it is better for the employer formalize the interview to have evidence in case of subsequent litigation.
The law also sets no specific deadline, but it provides the opportunity for the employee - as the employer - to be assisted by counsel (as the dismissal procedure). Case law has, for example, recognized the possibility for the employee to be assisted by his supervisor.
In practice, few employees (less than 10%) however, are choosing to be present during the interview.
The employer may also be assisted, but only if the employee has himself made this choice. In this case, the employer may ask a staff member to be present (in less than 50 employees, it can also seek the assistance of a member of the union of employers or another employer within the same branch). Conversely, if the employee does not need to be assisted, the employer can not be himself.
At this stage, the employee negotiates including the amount of its contractual termination benefit by asking an amount that may exceed the legal minimum allowance.
If the conventional termination procedure has been initiated by the employer, the employee will be in a strong position to negotiate the best amount of severance pay. In many cases, the company offers a conventional breach when it wishes to separate from the employee but not have enough legal arguments to be able to dismiss him.
Conversely, if the break is initiated by a request from the employee, the flexibility of the latter to negotiate the amount of the allowance significantly be reduced. An employer will indeed have less to pay compensation to an employee who in any case wish to leave and therefore can always ask for his resignation.
The amount of the contractual severance payment is of course the most important point of the negotiation, but other elements can be perfectly negotiated short of this step. Employee as the employer should therefore not limit discussion solely to the amount of compensation. For example it is possible to negotiate the transition from training in favor of the employee, the amount of the financial contribution to the implementation of a non-compete clause, or the extension of health coverage of mutual 'business. It is also possible to negotiate the date of departure of the company, which can be largely delayed in time.
If denied, the employee (or employer) is not obliged to justify its decision.
Conversely, to be valid, the parties' agreement must be formalized by the establishment and the signing of an agreement.
Employer as each employee can refuse a contractual termination proposal. When it comes from the employer, the employee is completely free to refuse without penalty. To formalize its decision, it may submit a letter of refusal to conventional breach (see our model) in which he says he simply wish to initiate the proposed procedure.
Conversely, the employer may well refuse a contractual termination given by the employee, and as many times as they wish. It does not have to provide reasons for its decision. The employee who suffers a refusal will still try to argue about the possible advantages this break for the employer (do not keep a demotivated employee, setting a sufficiently distant departure date for it to find a replacement, a simply equal to the legal minimum compensation demand, etc.). But if it persists, the employee who wishes to leave the company by any means will either resign or opt for abandonment of post. This solution may allow it to receive unemployment benefits, contrary to resign.
Conventional breaking results in the signing of an agreement which must then be approved. Here are the formalities to know about this vital document of the proceedings.
The agreement signed by both parties must state all the terms of the break, including the amount of the specific compensation for termination and the date of termination of the contract.
But employer as an employee need not mention the reasons for contractual termination in the agreement.
The employer may decide to write the conventional termination agreement on paper, provided to reflect the mandatory information. But the conventional termination request may also be sent via a downloadable cerfa online form. It is this form which will then be sent to the administration for approval.
Download the registration form from the conventional break.
To simplify procedures, the administration offers an online service to capture information specific to your contractual termination directly on the internet: TéléRC.
The seizure includes 4 stages: the coordinates of the employer and the employee, the calculation of conventional break fee, the course of maintenance and validation of the termination agreement. After filling out the online form, you simply download your personalized registration application in PDF and sign it. Once past the withdrawal period, the form should be sent to the service whose details are specified at the end of the entry.
Number of copies
The registration application must be established in counterparts, since each party has to keep one. Three copies must then be completed and signed (the third being sent to the Direccte).
Please respect this formality if no copy is given to the employer or the employee, the conventional rupture is considered void (Case No. 11-27000 made by the Supreme Court on 13 February 2013).
Date and signature
The employer and the employee must each sign copies. Better that these signatures are dated the same day if it is the date of the later signing to remember to calculate the 15-day withdrawal period (see below).
An employee who commit fraudulent transactions just after signing a contractual termination is subject to dismissal for serious misconduct, the conventional break being in this flawed case (Case No. 13/02186 made by the Paris Court of Appeal on 24 June 2016).
When the rupture concerns a protected employee (a staff representative, a member of the works council ...), the agreement must also be authorized by the Labor Inspectorate, as in case of dismissal.
The agreement must be submitted by the employer to the Direccte. Labor inspection must then notify its authorization within 15 days of the date of receipt of the request.
After the signing of the conventional termination agreement, the employee and the employer have a deadline to renounce their commitment. In case of withdrawal in the forms and deadlines, contractual termination has no effect: the employment contract should continue under the usual conditions.
When even after signing the agreement, the employee or the employer decides to waive the contractual termination, the agreement may be terminated by either party, within fifteen days of signing. The employment contract can not be broken during this period.
This is a period of 15 calendar days: every day count, including Saturday and Sunday. However, if the 15-day period ends on a Saturday, Sunday or holiday, the deadline is extended until the first working day thereafter.
The employer must wait until the end of this period of 15 days before submitting an application for approval to Direccte. Otherwise, the application will be denied, even if none of signatories has shown a willingness to reconsider its agreement (Case No. 14-26220 made by the Supreme Court on 14 January 2016).
It is advisable to formalize the resignation through a letter sent by registered mail with return receipt.
Once past the 15 days, the employer must submit an application for approval of the conventional termination agreement to Direccte. This transmission can take place at the end of the withdrawal period.
Once the application for approval received, the administration has a period of 15 business days to review and approve the conventional termination agreement. Beyond these fifteen days, his homologation agreement is assumed granted.
The administration will check the validity conditions of the contractual termination are met. As such, it will ascertain that the amount of compensation paid to the employee at least equal to the amount which it is legally entitled and that the withdrawal period has been respected.
In practice, the refusal of approval of a conventional termination find its cause in the non-compliance with the minimum amount of severance pay in nearly half the cases.
If Direccte refuses to confirm the contractual termination, the employer must inform the employee. Otherwise, it can legitimately think that the employment contract is broken (Case Appeal Court of Paris on 5 September 2016).
Direccte may yet approve a conventional termination refused at first, since it seeks and obtains additional information. Conventional termination agreement is valid if Direccte and withdraws its refusal. The employee can not be based on this first decision refusing to challenge the validity of the Convention (judgment of the Social Chamber of the Supreme Court No. 15-24220 of 12 May 2017).
Once validated, the conventional break causes several consequences.
The contract ends on the date fixed by the agreement. But this break date can intervene sooner than the day after the approval by the DDT, express or implied, or decision of the Labor Inspectorate for employees protected.
In principle, the employee is not required to comply with any notice of termination in case of contractual termination, unlike the case of dismissal or resignation. However, the agreement may well provide a date of termination of the employment contract can be largely delayed relative to the date of approval of the Convention.
The employee must receive a severance payment of an amount at least equal to the statutory redundancy payment. But it can still claim an amount higher than the legal minimum in the negotiations. For more information on the evaluation of this compensation, see contractual termination benefits: calculating and rights of employees.
At the time of termination of the employment contract, the employer gives the employee three documents: a certificate of employment, a certificate employment center and a receipt for final settlement. As in case of resignation or dismissal.
The employer must not give these documents too hastily. The Supreme Court (Case No. 14-20323 Social Chamber of 6 July 2016) has analyzed a dismissal without cause does for the employer to give a receipt for final settlement and employment center certificate before as well as the approval decision of the contractual termination is made. The employer must necessarily await the decision of the administration to hand over documents to the employee.
Taxation and levies
The tax and social security of the break fee is the same as that applicable to severance payments. They are thus exempt from taxes and social security contributions when the amount is below a certain ceiling.
Another advantage of the conventional break: the employees concerned can receive unemployment benefits paid by employment center (eg assedic). Conventional break allows to benefit from assedic, unlike the resignation, except in special cases (see resignations entitling unemployed), are not entitled to unemployment.
But be careful: the payment of supra-legal allowances leads to a deferred compensation by employment center. The duration of this delay depends on the amount paid: it can be particularly long for executives who leave the enterprise by touching important contractual termination benefits.
However, the duration of the deferred compensation is capped: since November 2017, it can not exceed 150 days (against 180 days before that date).
The employee retains the rights acquired under the DIF. If he finds a job after the contractual termination, it can ask his new employer to benefit, the latter being free to give or refuse consent.
If the employee gets the job seeker, it can apply to the employment center to pass a skills assessment or follow action VAE or training.
If the employee has previously acted in court to seek judicial termination of his employment contract, the subsequent conclusion of a conventional termination makes its action moot, the employment contract had already been broken by the conventional termination certified (judgment no ° 11-15651 of the social chamber of the Supreme Court was delivered April 10, 2013 and considering the case of an employee who previously brought an action for judicial termination for harassment before entering into a contractual termination thereafter).
The Supreme Court (Case No. 15-15175 made by the 3rd Civil Chamber June 9, 2016) considers the contractual termination entitles the reduction of the notice period applicable to the tenant to move out. The tenant employee who moves so has a notice period of one month, three months against normally. See and rent: notice reduced and contractual termination.
In contrast, conventional termination does not give right to tax exemption in case of dismissal during the total or partial surrender of a life insurance.
The employee and the employer may still challenge the validity of the conventional break even after signing.
The dispute falls within the jurisdiction of the Labor Court.
Time to act
The appeal must be initiated within a period of 12 months following the date of approval of the contractual termination by the administration.
However, in case of employer fraud (eg when it uses the conventional break to avoid having to set up a backup plan of employment), the time from the starting point a year is attached to the day the employee became aware of the fraud.
In practice, disputes related to conventional ruptures remain however very rare (0.1% of ruptures according to the Center for employment studies).
If the conventional break-up fee paid to the employee is less than the legal minimum wage can act employment tribunals (see the procedure to follow) to require the payment of additional compensation. However, the Supreme Court (Case No. 14-10139 July 8, 2015) considers that the employee can not go to apply for cancellation of the contractual termination for that reason alone, only fraud or defect of consent to justify this cancellation.
In practice, many employers offer a conventional break when they want to separate from the employee but they can not dismiss him. If the employee refuses to break his contract (he has the right), some employers may then resort to intimidation or pressure in order to force the employee to sign a conventional termination agreement. These methods can take many forms, such as inappropriate comments to rehearsals, regular denigration, started "cupboard"And even humiliation or threats ...
If the employee finally gives in and signs a contractual termination, it may be canceled if these practices have had the effect of vitiating consent of the employee when it signed the Convention. The courts regard as no particular an agreement signed while the employee is a victim of bullying.
However, in the absence of consent, the existence of a dispute or tension between the employer and the employee at the time of signing the contractual termination does not affect alone, validity thereof. The Supreme Court (Case No. 12-23942 of 15 January 2014) thus considered valid conventional break after signed receipt by the employee two warnings and then the passage of two interviews to discuss the possibility of a contractual termination.
Are you an employer or employee and you are planning to sign a contractual termination? The following articles may also interest you:
- Compensation in the event of contractual termination;
- Conventional break for a parental leave;
- The unemployment compensation conditions;
- The voluntary departure plan.
See as well
- Out on leparticulier.fr conventional: it is better to undergo the cause.
Photo credits: 123RF - Edhar yuralaits
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