Except in cases of fraud or defect of the consent, not alleged in this case, a Mutual agreed termination (rupture conventionnelle) could be validly concluded by an employee declared unfit for his or her position following an accident at work.
This is what the Court of Cassation has just stated in a decision of May 9th, 2019 (n°17-28767)
1) Reminder of the facts
Mrs K. was hired by Arbor France, now AFR France, as a livestock and hatchery employee.
Victim of a work accident, she was declared unfit for her job by two examinations on April 1 and 16th, 2014.
Employer and employee signed mutual agreed termination (rupture conventionnelle) on April 25th, 2014.
The Bordeaux Court of Appeal has validated the mutual agreed termination (rupture conventionnelle)
The employee has appealed to the Supreme Court.
2) The solution of the French Supreme Court (Cour de cassation)
In a decision of 9th May 2019, the French Supreme Court (Cour de cassation) dismissed the appeal.
The employee was pleading:
- that the mutual agreed termination concluded in breach of the specific law and order obligations imposed on the employer by Articles L. 1226-10 and L. 1226-12 of the Labour Code in favour of an employee who is declared unfit for work following a work accident is void;
- that, by holding that, in the absence of any invocation of a defect of the consent and demonstration of fraud by the employer, mutual agreed termination (rupture conventionnelle) was regular and could not be called into question, when it found, on the one hand, that following a work accident on July 4th 2011, Ms N... had been declared definitively unfit by two medical reports of 1st and 16th of April 2014, on the other hand, that the employee had concluded with the employer a mutual agreed termination on the following 25 April, which resulted in the breach of the contract of employment, even by mutual agreement, being null and void because of its unlawful object and to contravene the specific law and order obligations imposed on the employer by Articles L. 1226-10 and L. 1226-12 of the Labour Code for the benefit of the employee declared unfit for his employment following a work accident, the Court of Appeal violated the above-mentioned texts.
In dismissing the appeal, the Court of Cassation stated that "the Court of Appeal had correctly held that, except in cases of fraud or defect of the consent, not alleged in this case, a mutual agreed termination could be validly concluded by an employee declared unfit for his position following a work accident".
The Court of Cassation rejected the employee's argument, who pleaded that "mutual agreed termination, even by mutual agreement, was null and void because it had an unlawful purpose and contravened the specific obligations of law and order imposed on the employer by Articles L. 1226-10 and L. 1226-12 of the French Labour Code in favour of the employee regularly declared unfit for work following a work accident".
This decision is in line with the French Supreme Court’ case law (Cour de cassation) which aims to "secure" mutual agreed terminations (See our article: Employees, executives, senior managers - Conventional termination: the most important decisions of the Court of Cassation in 2018. https://www.village-justice.com/articles/salaries-cadres-cadres-dirigeants-rupture-conventionnelle-les-arrets-les-plus,30906.html ).
Nevertheless, the French Supreme Court notes that the mutual agreed termination will remain void in the event of fraud or a defect of the consent.
In this case, the employee had not used these 2 means of cancelling the mutual agreed termination.
Frédéric CHHUM, Avocat à la Cour et Membre du Conseil de l’ordre des avocats de Paris
CHHUM AVOCATS (Paris, Nantes, Lille)
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