The conventional break raises many questions, as demonstrated by the multitude of comments I receive on this blog.
In order to answer them (and thus avoid me this work), the general direction of the work decided (again) to take a circular to bring new precisions.
The paper version of this document is available here .
- either there is no particular protection of the employee and the conventional break can be envisaged. This is the case of parental leave for education, sabbatical leave, unpaid leave and traditional sick leave (for non-occupational illness).
- or there is special protection of the employee prohibiting any mode of termination except dismissal (highly supervised) and the conventional break can not be considered. This is a resumption of the principles and jurisprudence applicable to negotiated departure options . This is the case of maternity leave and sick leave for an industrial accident or occupational disease, which follow rules of public order, which are therefore binding on the parties even though the latter would agree to proceed otherwise. .
With regard to cases of conventional disruption for economic reasons, the latter is excluded in the framework of forward-looking employment and skills management agreements (GPEC) or in the context of the implementation of the employment protection plans (PSE). .
For my part, I am very cautious in advising an employee to accept a conventional break rather than being fired economically in the event of an individual dismissal, unless he agrees to a substantial break-up fee.
Regarding certain specific categories of employees, the conventional break may or may not be considered:
- in the event of an apprenticeship contract, the parties can not conclude a conventional break. The apprenticeship contract is not by nature a contract of indefinite duration, it can not be broken by a conventional break.
- conventional rupture is open to maternal assistants.
- salaried lawyers can benefit from the conventional break. The application for approval must be submitted to the competent DDTEFP. However, in case of litigation, it is before the President of the Bar that the dispute must be brought.
- employers of former employees protected in various capacities, and wishing to conclude a conventional break, must respect the procedure reserved for protected employees, and use the appropriate form, this during the periods of protection defined by articles L. 2411-3 and following of the Labor Code.
As regards the withdrawal and investigation periods by the DDTE, the applicable rules are those of Articles 641 and 642 of the Code of Civil Procedure and R. 1231-1 of the Labor Code. The deadlines begin to run the next day, on the one hand from the date of the signature of the rupture agreement (for the withdrawal period), and, on the other hand, the day after the reception of the homologation request by the DDTE (for the instruction time). When these periods expire on a Saturday, Sunday or a holiday or holiday, they are extended until the next working day. Both the date of sending the application for approval to the DDTEFP once the withdrawal period has elapsed, than the agreed date of termination of the employment contract, must take into account the application of these rules of computation under penalty of refusal of homologation of the conventional rupture. I remind here the mishaps of an employee facing this problem.
As I have already mentioned on several occasions, the notion of notice does not apply to the conventional breach, as the signature of the form does not materialize on the date of termination, as can the letter of dismissal ( resignation or taking of act) accompanied by its sending to the other party. It is obviously necessary to set an expected date of rupture after the deadline mentioned above, otherwise the approval refused. However, there is no maximum deadline for the planned date of termination. Thus, by setting a date several months after the signature of the termination form, both parties to the employment contract find themselves in a situation similar to a notice, even if it has none of the legal characteristics. Indeed, it is the rules relating to the employment contract that continue to apply. The employee can therefore perfectly take paid leave during this period.
The date of termination being the date provided on the form and not the date of its signature, the agreement must take into account, in particular for the calculation of the severance pay, seniority and wages not yet due. With regard to the basis for calculating the specific contractual termination indemnity, as the parties can only enter the twelve salaries paid previously to the homologation application, it will be up to the employee to verify that his remuneration to come up to the actual date of termination does not affect the basis for calculating the agreed compensation.
The determination of the basis of calculation is identical to that used for the severance pay. As such, it is – the most favorable for the employee – the average of the last three or twelve gross monthly wages. However, the employee may have received exceptional sums (annual bonus, etc.) some of these months. In this case, as with the severance pay (Article R. 1234-4 of the Labor Code), it will be a question of reconstituting the average gross monthly salary perceived by prorating these sums. In the case of an employee with less than one year of seniority, the specific termination indemnity is due in proportion to the number of months of presence.
Most of these clarifications made sense, but in the future, hopefully, will reduce the relatively high percentage (for a procedure that should have been simple and fast) of refusals of homologation of conventional rupture. It should be noted that it is unfortunate that the DGT has not been a little more "wet" on the problem of determining the compensation to be taken into account when calculating the severance pay: legal compensation or conventional dismissal, problem mentioned