When an employee accuses its employer of breaches of his employment contract (shelving, non-payment of overtime, non-compliance with the standard minimums, etc.), he/she may take the initiative and ask the judge for judicial termination (résiliation judiciaire) from its employment contract to the employer's excusive agreement or take note of the termination (prise d’acte de rupture) of the employment contract.
The interest of these two processes for the employee, is to obtain the judge that judges the rupture in unfair dismissal with profit of the damages of rupture (notice period, paid holidays, dismissal indemnity) and the damages for unfair dismissal.
The effects of judicial termination are different from those of taking action.
In both cases, there must be a serious breach (faute grave) of the employer.
1) The judicial termination (résiliation judiciaire) of the employment contract with the employer
The employee asks the judge to pronounce the termination of the employment contract to the exclusive tenets of the employer.
But the employer's failings must be serious enough.
The appreciation of this gravity is the sovereign power of the judges of the merits.
Is regarded as a sufficiently serious breach: non-compliance with the obligation to pay wages, non-compliance with the rules applicable to the medical supervision of disabled workers, non-payment of overtime, in case of moral harassment Failure to respect the principle of equal work, equal pay, etc.
When the proof of the deficiencies is reported and they are sufficiently serious, the judicial termination is then pronounced with the wrongs of the employer and produces the effects of a dismissal without cause real and serious of the day where the judge pronounces it.
2) The act of breaking the employment (prise d’acte de rupture du contrat de travail) contract with the employer
It is a type of unilateral termination of the employment contract by the employee, a response to what he considers to be an employer's breach of his contractual obligations.
These must generally be sufficiently serious breaches by the employer.
The act of breaking act produces the effects of either dismissal without real and serious cause if the facts invoked by the employee justified it, or, in the opposite case, a resignation. If the employee has not given notice, when taking action, he may be ordered to owe the employer damages in the amount of the notice.
The employee takes the initiative to terminate his employment contract, but intends to blame the employer for the breach. No formalism is required; however, we strongly recommend doing so by registered letter (LRAR).
The employee cannot retract from his act.
3) The Differences Between Judicial Termination and taking act of rupture
On the one hand, the employment contract is broken immediately when the contract of employment is terminated. Taking action is very risky and dangerous for the employee; it requires that he has already found a job because the employee who takes note will not receive unemployment benefits.
On the other hand, the employee who terminates his employment contract will continue to work while awaiting the judge's decision. On the other hand, the employee who initiates an action in judicial termination, must wait for the decision of the judge to know if the contract of employment will be broken or not.
In both cases (taking action or termination), if it is justified that is to say in case of sufficiently serious fault of the employer (faute grave), the employee will receive severance pay and damages for unfair dismissal.
Frédéric CHHUM, avocat and Member of the Paris Bar Council (Conseil de l’ordre des avocats de Paris)
CHHUM AVOCATS (Paris, Nantes, Lille)
.Paris: 4 rue Bayard 75008 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: 25, rue Gounod 59000 Lille tel: 0320135083