For several years, the Court of Cassation admits the possibility of concluding a conventional termination even if there is a dispute between the employer and his employee. Be careful though, explains Emmanuel Labrousse, one of the leaders of Walter France's Social working group : the conventional termination must be free from any defect of consent.
In a recent case, an employee, hired as a construction worker, repeatedly refuses to work with his safety harness and helmet. In view of the repetitiveness of the facts, the employer was considering dismissing him for serious misconduct, even heavy. However, with regard to the length of the contractual relationship, the company offers the employee the choice between dismissal for misconduct and a contractual termination. The employee chooses the second solution, but after the termination of the contract, requests the annulment of the conventional termination on the grounds that it is “void for violence”, because it was accepted under the threat of disciplinary dismissal. The Toulouse Court of Appeal dismissed the employee's appeal, which was confirmed by the Court of Cassation in a ruling of November 15, 2023 *. After recalling the principle according to which the existence of a dispute between the parties does not affect the validity of the termination agreement, the judges on appeal considered that the employee had not used his right of withdrawal and did not demonstrate that the contractual termination had been imposed on him by his employer.
A dispute does not call into question the validity of the conventional termination
The context of this decision is common when initiating a conventional termination procedure : the employer proposes a conventional termination to an employee when the employee has committed one or more faults or when he is at the origin of breaches creating harm to his employer. The conventional termination can then be considered as an acceptable option for both parties. ; the employee remains free to negotiate compensation higher than the applicable legal or conventional minimum, and the employer reduces the risk of labor disputes linked to termination of the contract. But the employer cannot under any circumstances extort the employee's consent under threat..
Proof of lack of consent is decisive
Remember that violence (just like error and fraud) is considered a cause of nullity. The fact for an employee to have signed a conventional termination under the constraint of a dismissal procedure constitutes a defect of consent. It is then up to the co-contractor who considers that he has been the victim of a defect in consent to demonstrate this in order to obtain the nullity of the conventional termination.. In a previous case, September 16, 2015 **, in a climate of conflict between the parties, an employee had received several letters of formal notice ordering him to return to his position or refusing to grant him leave. The employee was then called for an interview to finalize a contractual termination, but no signature had then taken place. After this interview, the employee had been laid off as a precautionary measure and summoned to a new interview with a view to, this time, dismissal for serious misconduct. The same day, he signed a conventional termination. In this particular context, the judges had considered, in view of the evidence provided by the employee, that the latter had no other option than to sign a contractual termination under duress or to be dismissed : the pressure exerted by the employer had vitiated the employee's consent. This agreement was deemed void, producing the effects of dismissal without real and serious cause.
An additional agreement is recommended to secure the operation
In the November 2023 affair, even if the Court recalled the existence of a dispute between the parties at the time of the conclusion of the termination agreement, she noted that the construction worker did not, however, provide proof of a defect in consent. If the mere fact of the employer proposing to the employee to sign such a termination does not constitute, in itself, a form of pressure ***, the employee must be able to establish that his consent was vitiated and that the contractual termination was imposed on him. In any case, Emmanuel Labrousse insists : “In this hypothesis, in order to secure the conventional termination, we recommend that you conclude an additional agreement, in addition to Cerfa, which will remind us that the employee has fully consented to the conventional termination. This agreement must recall the circumstances leading to the termination procedure., the existence of a withdrawal period, the possibility for the employee to contact the public employment service during this period to find out their rights to unemployment insurance and consider the rest of their professional career, and finally the common desire of the parties to engage in a conventional termination procedure, without pressure of any kind. »
* Judgment of the Court of Cassation of November 15, 2023 (no 22-16.957).
** Judgment of the Court of Cassation of September 16, 2015 (no 14-13830).
*** Judgment of the Court of Cassation of January 15, 2014 (no 12-23942).
