I take advantage of being solicited by various stakeholders on the subject of the conventional break on which I am one of the lawyers who wrote the most on the Net to make an initial assessment on this measure.
I do not go back on my opinion on its real interest for employers and employees, which has not changed much in the past eight months.
I continue to think that the conventional break is adapted in a very small number of cases grouping the hypotheses where the employee does not have much to reproach his employer but does not bloom more in his work, feeling felt by his an employer who prefers to accept an amicable break rather than having to find a reason for dismissal.
In all other cases, this mode of rupture is absolutely not suitable. If the employee accuses his employer of proven shortcomings and the latter knows it and puts pressure on the employee by proposing a conventional break, the latter, by accepting it, shot himself in the foot, since as I have repeated many times, the employer's failure to fulfill his obligations, under certain conditions, allows the employee either to take note of the breach of his employment contract to his fault, or to seek the judicial termination of his contractbefore the Labor Court. These two actions when they are founded entail the requalification of the termination of dismissal without any real and serious cause, resulting in the payment of compensation, the amounts of which may be very substantial.I have a six-figure example of various court applications while the employer laughed in the face of her employee when she asked for a conventional break indemnity higher than the legal minimum.
The employer is also misguided on his side since his main objective, to avoid any future litigation with his employee, is not guaranteed by the conclusion of a conventional break. At most, he will benefit from the shortened court challenge period of one year, but this delay only concerns action challenging the breach itself, not the entire employment relationship.
To guard with a near certainty, he must conclude a transaction with the employee but I have already expressed also my reservations as to the validity of a conventional post-rupture transaction in my article on the contestation of the rupture conventional .
What about my practice of this new mode of rupture for eight months?
I have, in all and for all, made two conventional breaks, including one currently in progress. The choice of this mode of rupture, in these two cases, has never been imposed in the first place. It was rather like ultimate solution, for lack of better.
I continue day after day, every time I am seized of a folder that would start in conventional break to refer my customers to something else, in 99% of cases to profit.
The conventional break is therefore for me (and a large majority of lawyers) of a very low interest. It is a poorly designed tool that is not malleable and often has more problems than it solves.
Statistics at the national level are there to testify. Between August 2008, the date of creation of the conventional rupture and March 2009, nearly 67,000 breaks were approved for 88,470 applications, or nearly 25% refusal of approval, with situations often catastrophic for employees following the refusal: immediate resignation due to pressure from the employer, continuation of the employment relationship in a terrible climate, lack of "support" of the DDTE, which sends the employee to apply to the Labor Court to challenge the refusal of homologation …
It should be remembered that the main reasons for refusal of homologation often lie in the mistakes made by the employers themselves, either within the procedural deadlines to be complied with, or in the amount of the termination indemnity , or even more grossly, in the circumstances. of assistance of the parties, errors which only prejudices the employee and for which the employer can not be implicated, contrary to what happens in the context of a dismissal.
All this shows, if need be, that this mode of rupture clearly suffers from a flagrant lack of information from employers and employees, wishing to put an end to their relationship. It should also be kept in mind that this mode of disruption should not be implemented lightly without first consulting a legal professional.