3/11/2017 - Does terminating an employment contract reclassified as a resignation require the employee to comply with the contractual notice period ?

By  Alexandre MARINELLI, lawyer in Paris


From the employee’s perspective, prior to terminating an employment contract under the mechanism known as “prise d’acte de rupture” (notification of termination), account should be taken of the risk of reclassification (“requalification” or the act whereby a court restores an act’s or a fact’s classification or characterisation, without settling on the parties’ classification or characterisation of that act or fact) into a mere resignation, pursuant to which damages would be due the employer for failure to comply with the prior contractual notice period.

Alexandre Marinelli, of the ADAM-CAUMEIL law firm, intervened in an employment-related dispute between an employer, a subsidiary of an international group, Company Z, and a former employee, Mr LS.

Mr LS had filed a claim before the Conseil des Prud’hommes (or Labour Relations Court) of BOULOGNE-BILLANCOURT (Hauts-de-Seine) for damages based on a “prise d’acte de rupture”, a judicial legislative creation that allows an employee, in the event of the employer’s material breach, to dismiss himself (“s’auto-licencier”), leaving the employer to bear the termination damages and contractual notice period.

The employee petitioned for the recognition of the termination of the contract at his initiative and the reclassification of this termination into a wrongful dismissal against Company Z.

To establish his employer’s liability, Mr LS raised the issue of the substantial amendment of several aspects of his employment contract, which took place in the context of implementing a new work organisation within the group’s companies.

Having given notice of his termination under the “prise d’acte de rupture” mechanism, the employee stopped reporting to work, without his employer having waived his contractual notice period. 

However, it is settled case law that, particularly in the event of a dismissal deemed to be unfair, the contractual notice period gives rise to damages by operation of law for the benefit of the employee, irrespective of a finding of any harm.

Conversely, when a resigning employee does not comply with his contractual notice period, it is reasonable to believe that the employee may be required to pay such damages to his employer. 

In practice, however, in the situation just described, courts generally dismiss the employer’s claim for damages on the ground that there is no evidence of injury suffered by the employer. In this case, the Conseil de prud’hommes had dismissed Mr LS’s claim and found that his notification of termination (his “prise d’acte”) was in fact a notification of resignation, but did not draw the necessary conclusions, including, in particular, as regards the failure to implement his contractual notice period.

The employee appealed and the employer cross-appealed, petitioning for the court to order the employee to pay the employer damages for non-compliance of the employee’s notice period.  In its decision handed down on 26 October 2017 (case number 15/04002), pursuant to Article L.1237-1 of the Employment Code, the Court found that “in the event of resignation, the employee is required to comply with a notice period … and, unless waived, the employee who does not comply owes his employer damages the amount of which is equal to his corresponding wages”. 

These damages are therefore one-time damages and the VERSAILLES Court of Appeal held that they are due “irrespective of a finding of injury suffered by the employer”.  

This decision is certainly not a first, the Labour Chamber having already ruled in this direction in 1990 and 1991 (Labour Ch., 9 May 1990, case number 88/40044 and Labour Ch., 23 Oct. 1991, case number 88/41278), but it is rare that it is taken up by the lower courts.

This decision should nevertheless be celebrated since it contributes to the improvement of moral and ethical standards in employment relations, which remains one of the objectives of civil liability in general.

From the employee’s perspective, prior to terminating an employment contract under the “prise d’acte de rupture” mechanism, account should be taken of the risk of reclassification into a mere resignation, plus, in this case, damages to the employer for non-compliance with the contractual notice period.


Alexandre MARINELLI
Lawyer in Paris



All the news of the Cabinet-Caumeil Adam, Attorneys in Paris


03NOV
Does terminating an employment contract reclassified as a resignation require the employee to comply with the contractual notice period ?

By  Alexandre MARINELLI, lawyer in Paris

From the employee’s perspective, prior to terminating an employment contract under the mechanism known as “prise d’acte de rupture” (notification of termination), account should...

+
21OCT
Emmanuel Macron's ordinances - Labour Law

Judith Adam-Caumeil, founder of Adam-Caumeil Firm, deciphers we Emmanuel Macron's prescriptions regarding Labour law. A native German speaker admitted to both the Paris Bar and the Stuttgart Bar, Judith Adam-Caumeil offers support throughout the life of your company in particular during the creation of your French subsidiary in Germany and during the writing of your contracts of employment.

...
+
18OCT
Great Success of Artistic Freedom

Mrs. Judith Adam-Caumeil, attorney and partner at the law firm Adam-Caumeil, won a leading case before the highest French court. Adam-Caumeil, specialising in Franco-German business relations, represented the Bayerische Staatsoper (Munich Opera) against Mr. Gilles Bernanos, administrator of the estate of French writer Georges ...

+
09OCT
Temporary missions and limited activities in France
...
+
22JUN
Adam-Caumeil and the triumph of creative freedom

Adam-Caumeil, represented by Judith Adam-Caumeil, Attorney and Partner at the firm, recently won a leading case before the highest French court. In this case, Ms Adam-Caumeil represented and assisted the Bayerische Staatsoper (Munich Opera) against Mr Gilles Bernanos, administrator of the...

+
02MAY
May 2017

Cabinet Adam-Caumeil will participate at the next Eurojuris International Practice Groups Days in Lisbon from Mai 4th to May 7th. Please click here for the program of this event.
...

+
17OCT
Judith Adam-Caumeil, new board member of Eurojuris International
...
+
08OCT
Interview of Judith Adam-Caumeil by the journalist Julien Oeuillet

What is a Franco-German lawfirm?
It means we do French law in the German language. We work mostly for German-speaking clients from Germany or Austria who have business in France, be it through their French office or because they sell their products on French territory. They may encounter difficulties or simply be in need of advice about how to do business properly here; pe...

+
04MAY
Legal update Criminal deeds under French labour law
...
+
19JAN
Participation of our firm at the Austrian Ball in Paris
...
+
2 avenue Trudaine
B.P. 30657 · F-75423 Paris Cedex 09
Tél. (0033)1 42 81 41 51
Fax (0033)1 42 81 49 26
avocats@adam-caumeil.com
www.adam-caumeil.com