When an employer or an employee wishes to terminate the employment contract which binds them, he may have recourse to conventional termination. This provides for the termination of the contract by mutual consent of both parties. It is also advantageous, compared to a dismissal or resignation procedure.
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Focus on the procedure to apply to request a contractual termination.
What is a conventional breach of contract?
Since 2008, a new mode of breach of employment contract has emerged. This is the conventional break. It is a procedure that allows the employee and the employer to establish a amicable termination of employment contract.
This type of termination excludes fixed-term contracts (CDD) or temporary contracts. It is also different from a dismissal or a resignation.
It is valid only for employees with a permanent contract (CDI).
The contractual termination can be initiated by one of the two parties. It provides benefits for both the employee and the employer.
The employee can claim severance pay and unemployment benefits if he meets the eligibility conditions. It also gives the right to release the amount available on the company savings plan (PEE).
What are the conditions for a contractual termination?
The first indispensable condition for a contractual termination is the mutual agreement between the parties. The employee and the employee have the obligation to agree on the use of this mode of termination of the employment contract. None of the parties can impose contractual termination on the other.
The contractual termination does not have to be justified either by one or the other of the parties.
It also assumes that there is no litigation between the company and the employee.
In addition, case law grants recourse to contractual termination during a period of suspension of the employment contract following an accident at work or an occupational disease. Thus, only during periods of suspension of the employment contract relating to maternity leave, and this, during the 10 weeks following the leave. The only condition imposed is freedom of consent. If it is initiated in the context of moral harassment, it is automatically considered invalid.
Moreover, there exists several cases where contractual termination is not authorized :
- if it is concluded during a job protection plan (PSE)
- if it results from a collective agreement for the forward management of jobs and skills (GPEC)
- if it is carried out under fraudulent conditions and in the absence of an amicable agreement between the employee and the employer
- if it aims to circumvent the guarantees for the employee in terms of redundancy
What is the procedure for a contractual termination?
- The preliminary interview to set the terms
- Signing of the application for approval and the termination agreement
- Waiting for the withdrawal period
- Approval of the termination agreement
- End of employment contract
Preliminary interview to set the terms
During a conventional termination proposal, the parties must carry out at least one preliminary interview in order to define the terms of negotiation of the agreement. Several interviews can be conducted if necessary.
The interview must take up the fundamental elements to determine the conditions of the break, namely:
- the date of termination of the employment contract,
- the amount of compensation paid by the employer
- the period of notice to be carried out or not
The conditions for calling the interview are free (date, time, place). It is still advisable to establish a request for maintenance in writing to be delivered by hand or by registered letter.
During the interview, the employee has the possibility of being assisted by a staff representative in the company or by an adviser to the employee. If the latter decides to have recourse to this assistance, he must inform his employer thereof in writing or orally, before the interview.
The same conditions of assistance apply to the employer who can choose to be assisted by a member of his employer’s trade union organization or by a staff member of his company. He must also inform the employee if this is the case.
Signing of the application for approval and the termination agreement
After conducting the interview(s), the employee and the employer must sign the termination agreement.
This must show the following elements to set the conditions of the contractual termination:
- the dates of the interview(s)
- the date of termination of the contract
- the granted amount of severance pay
- the conditions for returning the equipment
- the terms of execution of the employment contract during the procedure
- the confidentiality clause if there is one
Under no circumstances should it include the reason for the termination of the contract.
Waiting for the withdrawal period
A withdrawal period of 15 calendar days is applied from the day after the day the agreement is signed.
It should be noted that if the term is deferred to the next working day if the deadline expires on a Saturday, Sunday or a public holiday.
It offers the possibility, to each of the parties, to change their decision, without justifying themselves. In the case of a retraction, this can take place by delivery of a letter by hand or by registered letter with acknowledgment of receipt.
If one of the parties withdraws, the employment contract continues normally.
Approval of the termination agreement
In the event that none of the parties has retracted, the application for approval accompanied by the termination agreement should be sent to DREETS, by remote transmission.
If the employee is protected, he is not subject to approval. However, the authorization of the labor inspector is necessary.
From receipt of the request, DREETS has 15 working days to validate the agreement and verify the free consent of the parties. If there is no response within this period, the termination is automatically approved.
However, there are a few cases where it may be refused, in particular when the conditions are not respected (withdrawal period, assistance, payment of compensation below the legal minimum), in the event of procedural errors or failure to consent of the parties.
End of employment contract
Once probate is granted, the employment contract is terminated. When the employee leaves, the employer must submit end-of-contract documents, namely:
- work certificate
- the Pôle Emploi certificate
- the balance of any account
- the summary of the amounts saved on the employee savings plan or linked to profit-sharing and profit-sharing schemes
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