In two decisions of July 3rd 2019 (Cass Soc., 3 July 2019 No. 17-14232 and No. 18-14414), the Court of Cassation imposes more formalism on the signing of the agreement to terminate the employment contract in the context of a conventional break.
Indeed, the Court of Cassation states, first, that the copy given to the employee is signed by the employer and, secondly, that there is no presumption of handing this document to the employee .
In a decision of February 6, 2013 (Cass., February 6, 2013, No. 11-27000), the Court of Cassation imposes the remission to the employee, upon signature, a copy of the individual termination agreement. In the event of a breach of this formality, the termination agreement is void, and the employee may be awarded severance pay for no real and serious cause.
The Court of Cassation considers that this allows the employee to seek approval of the termination agreement (art L 1237-14 of the Labor Code) but also to exercise his right of withdrawal, which must occur within fifteen days of the signing of the agreement "by both parties" (art L 1237-13 of the Labor Code).
In two judgments of 3 July 2019 (Cass Soc., 3 July 2019 n° 17-14232 and n° 18-14414), the Court of Cassation strengthens the formalism when the termination agreement is signed.
1) A copy of the termination agreement with the signature of the employer must be given to the employee (C. cass. July 3rd, 2019, n° 17-14232)
In the first case decided by the Court of Cassation, an employee had signed an agreement of rupture individual which had been established in two copies.
However, the copy given to the employee had not been signed by the employer.
The Court of Appeal of Metz had considered that the agreement of rupture should not be canceled because, notwithstanding the absence of signature of the employer on the copy given to the employee, the latter still had the possibility to exercise his right of withdrawal from his own signature on the agreement.
The Court of Cassation will overturn the judgment of the Metz Court of Appeal.
Indeed, the High Court states that "only the handing over to the employee of a copy of the agreement signed by both parties allows him to apply for homologation of the agreement and to exercise his right of retraction in full knowledge of the facts" .
This formalism has two consequences:
- on the one hand that the consent is certified for both parties; but also
- that the employee can exercise his right of retraction in full knowledge of the facts since the date of the signature constitutes the starting point of said period.
2) The question of the proof of delivery of the copy of the termination agreement to the employee (c. cass. July 3rd, 2019 n° 18-14414)
In the second case judged by the Court of Cassation, an employee had signed an agreement of rupture but a copy had not been given to him.
He then requested the cancellation of the agreement of rupture before the industrial tribunal.
The Angers Court of Appeal dismissed his claim by conjecturing a presumption of delivery of the copy to the employee because the Cerfa form indicated that the agreement had been drawn up in two copies.
The Court of Cassation breaks the judgment of the Court of Appeal of Angers and specifies that the latter could not refuse the request for cancellation "without finding that a copy of the termination agreement had been given to the employee".
The High Court therefore does not recognize any presumption as to the delivery of the copy of the termination agreement to the employee since the mere indication of the mention "made in two copies" is necessary but not sufficient (CA Colmar 13 October 2015 no. 14/01550).
This absence of presumption of delivery of a termination agreement places the burden of proof on the employer, who must demonstrate that a copy of the termination agreement has been given to the employee in the event of litigation.
On this point, the case law has specified certain modalities.
Indeed, it is recommended that the employer sign a receipt for the delivery of a signed termination agreement to the employee or to mention that a copy has been issued to him.
Indeed, the Metz Court of Appeal has ruled that there is an agreement of rupture that does not include any indication on the number of originals established or the delivery of a copy of it (CA Metz, April 7, 2015 # 13/02982).
Cass. Soc., 3 juillet 2019 n°17-14232
Cass. Soc., 3 juillet 2019 n°18-14414
Cass. soc., 6 février 2013, n°11-27.000
Article L 1237-14 du Code du travail
Article L 1237-13 du Code du travail
CA Colmar 13 octo 2015 n°14/01550
CA Metz, 7 avril 2015 n°13/02982
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