Mar
22
French labour law - Mutual agreed termination (Rupture conventionnelle): in case of a defect of consent, the existence of acts of moral harassment does not in itself affect the validity of the mutual agreed termination (C. Cass 23.01.2019, No. 17-21550)

The Court of Cassation continues in its case law policy of foreclosure of Mutual agreed termination (Rupture conventionnelle).

On the approval of Articles L. 1237-11, L. 1152-1 and L. 1152-3 of French Labour Code, the Court of Cassation states that "in case of a defect of consent, the existence of acts of harassment does not in itself affect the validity of the Mutual agreed termination (Rupture conventionnelle) entered into pursuant to Article L. 1237-11 of French Labour Code ".

1) Facts and procedure

Ms. Z ... was hired by Cordirom as an administrative and commercial agent on June 10, 2011.

The parties signed an mutual agreed termination of the employment contract on April 28, 2014.

The employee file a complaint before the “conseil de prud’hommes”.

The Court of Appeal of Bastia declared null and void the mutual agreed termination, retaining that an employee can obtain the cancellation of the termination of its employment contract since it establishes that it intervened in a context of moral harassment, without having to prove a vice of consent.

The employee does not invoke in this case any vice of the consent but that, the moral harassment being constituted, it is necessary to note the fact that the mutual agreed termination is null and void.

2) Solution of the decision of January 23rd, 2019 n ° 17-21550 and analysis

The Bastia Court of Appeal is censored by the Court of Cassation.

For the approval of Articles L. 1237-11, L. 1152-1 and L. 1152-3 of the French Labour Code, the Court of Cassation states that, in the absence of a defect of consent, the existence of acts of moral harassment does not in itself affect the validity of the Mutual agreed termination (Rupture conventionnelle) entered into pursuant to Article L. 1237-11 of French Labour Code.

***

To challenge the validity of the mutual agreed termination, in addition to the moral harassment, the employee must establish that its consent was vitiated when signing the convention of mutual agreed termination (rupture conventionnelle).

Error, fraud or violence can vitiate consent (Article 1130 of the French Civil Code)

This is the first time that the Court of Cassation has given such a solution.

This solution is severe for the employee.

This goes in the direction of the constant policy of the Court of Cassation to lock in Mutual agreed termination (Rupture conventionnelle).

Of course, in case of conclusion of a mutual agreed termination, employees can however claim before the labour court (conseil de prud’hommes) the sums related to the execution of their employment contract and ask for reminders of wages, bonuses, overtime (heures supplémentaires), work concealed (travail dissimulé), moral harassment, etc.

Source:  Court of Cassation website

c. cass. January 23rd, 2019, No. 17-21.550

https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000038091458&fastReqId=1633604373&fastPos=14

Frédéric CHHUM, Avocats à la Cour (Paris, Nantes, Lille)

Membre du Conseil de l’ordre des avocats de Paris

.Paris : 4 rue Bayard 75008 Paris - Tel: 01 42 56 03 00 ou 01 42 89 24 48
.Nantes : 41, Quai de la Fosse 44000 Nantes -  Tel: 02 28 44 26 44

. Lille : 25 rue Gounod 59000 Lille – Tel : 03 20 13 50 83

E-mail : chhum@chhum-avocats.com

Blog: www.chhum-avocats.fr

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