Par frederic.chhum le 23/07/18

In case of dismissal following an internal investigation (enquête interne) in a company, the judge, seized of a challenge of its dismissal by an employee, cannot base its decision solely or decisively on anonymous testimony (temoignages anonymes).

To our knowledge, the decision of the Cour of cassation July 4th 2018 is unseen.

This judgment must be approved because it strengthens employees' rights of defence in case of dismissal following an internal investigation (enquête interne).

1) Facts

Mr. X  was hired on March 1st, 2007 as an expert building buyer by SNCF mobilités.

On February 4th and 5th, 2013, the employee and Ms. Z ... approached SNCF's ethics department.

Following an internal investigation, the company notified the employee on September 18th, 2013 a suspension measure and summoned him to the Disciplinary Board.

He was dismissed on September 25th, 2013 for fault.

The employee was reproached for making racist remarks about a colleague of Muslim religion and insulting remarks about his hierarchy.

2) In case of an internal investigation, the judge cannot base his decision solely or decisively on anonymous testimony.

With regard to Article 6 §1 and 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in its decision of July 4th 2018, the Court of Cassation states that "the judge cannot base its decision solely on or in a decisive way on anonymous testimonies ".

Article 6 §1 of the ECHR provides that:

«In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. ".

Article 6 §3 of the ECHR provides that

Everyone charged with a criminal offence has the following minimum rights:

a) To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b) To have adequate time and facilities for the preparation of his defence;

c) To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

e) To have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

The Court of Cassation breaks the decision of the Rennes Court of Appeal which considered that the dismissal procedure is regular and the dismissal justified, having retained that "the infringement of the rights of the defense based on the anonymous character of the testimonials collected by the Ethic Committee is not justified to the extent that the employee had the opportunity to read and comment on them, relied decisively on the report of the Ethic Committee”.

The Court of Cassation breaks and annuls the decision of the Rennes Court of Appeal of March 17th 2017 in that it denied the employee's claim for damages for dismissal without cause real and serious ground.

The case is sent to the Angers Court of Appeal.

3) Contribution of the judgment of 4 July 2018.

In case of a dismissal, if a company conducts an internal investigation (enquête interne), employees who testify must be identifiable.

Otherwise, the dismissal may be invalidated because the evidence may be removed from the proceedings by the judge because of their anonymity.

In any case, the judge cannot base its decision solely or decisively on anonymous testimony.

This decision should be welcomed, which strengthens employees' rights of defense in the event of dismissal following an internal investigation (enquête interne).

Source:  Legifrance

·  c. cass. 4 juillet 2018, n° 17-18.241 (M. X c/ établissement SNCF mobilités).

·  Convention de sauvegarde des Droits de l’Homme et des Libertés fondamentales telle qu’amendée par les Protocoles n° 11 et n° 14.
 

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

. 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

e-mail : chhum@chhum-avocats.com

Blog : www.chhum-avocats.fr

http://twitter.com/#!/fchhum

 

 

 

Par frederic.chhum le 01/06/18

According to a study published on January 26th, 2018 by French Ministry of Labour, employees (salariés) made, between January and September 2017, an average of 10.2 hours of overtime per quarter.

However, these figures only take into account overtime worked, reported and paid by the companies.

In practice, many extra hours / overtime (heures supplémentaires) are worked by employees without being paid.

Above all, unlike an urban legend, executives (cadres, cadres supérieurs) can be paid overtime.

In a context of a labour dispute, overtime is often an important item of employee demands.

Sometimes, the amount of overtime claimed by an employee may be equivalent to the amount of damages for unfair dismissal.

The “Macron” ceiling on indemnities for unfair dismissal will at the same time lead employees to make further claims to the labour tribunal, in addition to challenging their dismissals.

I) Executive managers and executives with “forfait jours”: can I be paid for my overtime?

A- Senior executives (Cadres dirigeants) and overtime (heures supplémentaires)

As a matter of principle, senior executives (cadres Dirigeants) are not subject to legislation on overtime.

Nevertheless, if the employee demonstrates that he does not fulfill the 4 cumulative conditions of the senior executive (responsibilities whose importance implies a great independence in the organization of his schedule, empowerment to make decisions in a largely autonomous way, remuneration being in the highest levels of the remuneration systems in the company, participation in the management of the company), he can obtain payment of overtime.

By way of example, in a judgment of November 15, 2017 (Mr X C / RMH & LOUVRE HOTELS GROUP), the Paris Court of Appeal upheld the judgment of the Meaux Labour Tribunal which had condemned the company to a payment of EUR 72,441 gross as overtime reminders (rappels d'heures supplémentaires).

The employee employed as Director, senior executive, had demonstrated that he did not participate in the management of the company, that he did not have one of the highest remuneration and that he could not take any decisions in a largely autonomous way.

In order to demonstrate overtime, the employee produced the weekly schedules of the staff, validated by the employer as well as a general summary table of his schedules.

B- "Forfait jours" and overtime

The use of Forfait jours must be authorized by a collective agreement at the company or site (établissement) level or by a branch agreement (article L.3121-63 of the Labour Code).

This agreement must specify the categories of employees concerned, the volume of packages and the main features of the packages.

The agreement must also contain provisions ensuring the protection of health and safety of the employees and set the conditions for regular monitoring of the workload of employees (charge de travail).

If the agreement does not provide for one of these provisions, the fixed-term agreements are null and void.

If the employer does not comply with the contractual provisions governing the “forfait jours” (for example if it does not set up an annual evaluation on the workload), the “forfait jours” are not effective.

In both cases, the employee's working time must be calculated on the basis of 35 hours and he / she can then request the payment of his overtime, subject to substantiating his request.

Thus, in a judgment of 21 February 2018, the Paris Court of Appeal sentenced an employer to pay 15,000 euros as overtime reminders, since the latter did not set up an annual evaluation evoking the workload of the employee.

In support of his request for overtime, the employee produced e-mails, schedules, certificates and overtime tables to support his request.

II) How to calculate overtime under French law ?

2.1) The principle: 35 hours per calendar week.

Overtime is calculated by calendar week (semaine civile), which is Monday at 0.00 to Sunday 24.00.

Therefore, hours worked beyond the daily hours of work are not necessarily overtime because overtime is calculated over the calendar week (semaine civile).

Only hours worked in excess of 35 hours per week are overtime hours.

Example:

Ms. X works 35 hours a week, from 9 am to 5 pm, with 1 hour of lunch break (7 hours of actual work per day).

During the week of January 8 to 14, 2018, Ms. X worked from Monday to Friday, from 9 am to 7 pm, with 1 hour of lunch, ie 9 hours of actual work per day.

She therefore performed: 9 hours x 5 days = 45 hours.

His employer must therefore pay him 10 extra hours.

During the week of January 15 to 21, 2018, Ms. Y paid 2 days of paid vacation on Thursday and Friday.

She worked from Monday to Wednesday, from 9am to 7pm, with 1 hour of lunch break.

She therefore performed: 9 hours x 3 days = 27 hours.

No extra hours are due to him.

It is therefore imperative to count the days of paid leave / absence for sickness or other day of absence (décompter les jours de congés payés / absences pour maladie ou autre jour d’absence) in order to calculate the exact working time.

2.2) Overtime payment (la majoration des heures supplémentaires) : 10%, 25% or 50%?

In the absence of a collective agreement, overtime premium rate is fixed at 25% for the first 8 hours, then 50% for the following hours (Article L.3121-36 of the Labor Code).

A collective agreement may, however, set overtime rates, but may not be less than 10%.

The salary for overtime calculations corresponds to the "basic salary", which takes into account all elements of remuneration "directly related to the employee's professional activity" (Cass.soc., September 23rd, 2009, n ° 08-40.636).

Thus, in the calculation of the salary to be increased the bonus for Sunday work, at night, but also the benefits in kind (avantage en nature) or target bonus.

2.3) The exceptions.

2.3.1) Annualization of working time (Article L.3121-41 of the Labour Code)

A collective agreement may provide for the organization of working time over a period of more than one week and, at most, over three years.

If the working time is organized over an annual period, the trigger for overtime is set at 1607 hours (except for a more favorable collective agreement).

The collective agreement may also provide for the possibility of establishing a weekly calculation of working time, which would trigger overtime.

In case of organization of working time over a period of less than or equal to 1 year, are considered as overtime (Article D.3121-25 of the Labour Code):

Hours worked beyond 39 hours per week;

Hours worked beyond the average 35-hour week calculated over the reference period.

2.3.2) The days of “RTT”.

An employee may benefit from RTT days to compensate, by rest days, for a working week of more than 35 hours.

Example:

An employee working 37 hours a week has 12 days of RTT per year.

The "extra" hours worked each week do not give rise to financial compensation but to compensation in days of rest (RTT).

3) How to prove overtime before the Conseil de prud’hommes

In terms of overtime, the Labour Code provides for a shift in the burden of proof.

Thus, Article L.3171-4 of French Labor Code provides that "In the event of a dispute concerning the existence or the number of hours of work completed, the employer shall provide the judge with the information necessary to justify the hours actually carried out by the employee.

On the basis of these elements and those provided by the employee in support of his application, the judge forms his conviction after ordering, if necessary, all the measures of inquiry that he considers useful. "

All the elements enabling the actual work schedules to be demonstrated can be produced as soon as they make it possible to determine exactly the hours worked.

It could be:

  • Score records;
  • emails;
  • Personal diary (including personal and professional appointments) specifying start time and end time each day;
  • testimonies from colleagues;
  • Train / plane / bus tickets for business trips;
  • shared professional agenda.

4) In practice, how to prepare your file before the prud’hommes ?

In order to simplify and make more readable overtime count, it is best to provide an “Excel” file below.

The summary table should be a strict reflection of the elements produced to demonstrate overtime.

Only demonstrated overtime, with supporting evidence, is likely to be admitted before a Labour tribunal or a Court of Appeal.

In the absence of evidence to demonstrate the actual schedule, it will only take into account the applicable time in the company.

5) The 3-year time limit (prescription) of overtime recall requests.

Since the 2013-504 securing employment law of June 14, 2013, article L.3245-1 of the Labour Code provides for a 3-year time limit “prescription” for salary recall requests.

This period of 3 years applies "from the day on which the exerciser knew or should have known the facts enabling him to exercise it" or, if the employment contract is broken "on the amounts due under three years before the termination of the contract ".

6) Concealed work (travail dissimulé) and overtime.

In the presence of unpaid overtime, an employee may also obtain an allowance for concealed work (travail dissimulé) corresponding to 6 months’ salary (Article L.8223-1 of the Labor Code).

In fact, under Article L. 8221-5 of the Labor Code: "is deemed to be concealed work, by concealment of salaried employment, the fact for any employer to intentionally evade the completion of the formality of declaration prior to hiring, to evade the issuance of pay slips or to mention on the latter a number of hours of work less than that actually accomplished ".

Thus, it is considered as concealed work that an employer does not mention overtime on the pay slip (fiche de paie), and therefore indicates a lower number of hours of work than actually worked.

Recently, in a judgment of 13 February 2018 (Mrs X c / CRAZY ENTERTAINMENT), the Paris Court of Appeal sentenced an employer to pay compensation for concealed work for having mentioned, on the payslips (les fiches de paie), a number of hours of work less than the actual work done.

In particular, the judges found that the employer could not have been unaware that the employee had worked overtime, which had not been remunerated or mentioned on the pay slips (and therefore not declared and subject to social security contributions).

In support of her request for overtime and concealed work allowance, the employee produced a count of overtime hours, schedules indicating the scheduled hours, and certificates of employees.

Similarly, in a judgment of 23 January 2018 (Mr Z c / TF1 PRODUCTION), the Versailles Court of Appeal sentenced an employer to the payment of compensation for work concealed because of the non-payment of 630.74 euros overtime.

Similarly, in a high-profile judgment of 21 February 2018, a hairdresser obtained the conviction of his former employer for an allowance for covert work of 9,000 euros for non-payment of 3.5 hours overtime.

The Court of Appeal thus held that the employer had "knowingly” omitted to take into account the hours thus completed and to pay them when the balance of any account is paid.

In support of his request for overtime, the employee produced the handwritten schedules of the hair salon.

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

. 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

e-mail : chhum@chhum-avocats.com

Blog : www.chhum-avocats.fr

http://twitter.com/#!/fchhum

 

 

Par frederic.chhum le 15/12/17

Macron Ordinance N°. 2017-1387 of September 22nd, 2017 on the predictability and securing of employment relationship, provides for a capping on compensation for unfair dismissal with a minimum scale (Barème minimum) and a maximum scal (Barème maximum).

In our brief of September 5th, 2017 titled "What Changes for employees with Capping of compensation for unfair dismissal", we analyzed the changes to the ceilings on the severance pay system.

https://www.legavox.fr/blog/frederic-chhum-avocats/macron-ordinances-wha...

The capping (plafonnement) of the Macron ordinance will inevitably weaken and contributed to the precarious of employees in companies because compensation for unfair dismissal will be priced and it will no longer be dissuasive, especially for employees under 5 years seniority.

  • Take for example an employee who has 2 years’seniority in a company with more than 10 employees and whose dismissal is without cause (unfair dismissal). Whereas previously, this employee would have obtained a minimum compensation of 6 months of gross salary to labour courts, the dismissal compensation planned by the Macron Ordinances is now fixed at 3.5 months of salary, that is almost two times less.
  • Now take an employee who has 5 years’seniority in a company with more than 10 employees, he can now obtain, a maximum compensation of 6 months salary in case of unfair dismissal but will also be applied the minimum amount of 3 months' salary provided for in the scale.
  • Finally, take an employee who has 10 years’seniority in a company with more than 10 employees, he can obtain in the event of unfair dismissal, a compensation varying between the minimum amount of 3 months and a ceiling of 10 months salary.

Having said that of these new rules, the purpose of this article is to present four simple tips to avoid the ceiling of the Macron ordinance and to secure your employment contract.

1) Tip n° 1: Negotiate a "golden parachute" in your employment contract and / or negociate longer contractual notice period

To negotiate a "golden parachute" is THE Council (almost) unstoppable

In practice, this advice is however intended for executives (cadres supérieurs) or senior managers (cadres dirigeants) who are most often granted such clauses.

However, any employee may attempt to negotiate a "golden parachute" with his new employer or current employer.

The "golden parachute" or contractual compensation allows to avoid the Macron scale (Barème) provided for by ordinances.

It consists in providing, in advance and contractually, the amount of compensation that will be due in the event of dismissal instead of legal or contractual compensation.

This contractual compensation is in addition to the possible compensation for unfair dismissal of Macron ordinances.

It can be negotiated freely and therefore be much higher than the scale.

However, it should be noted that these "golden parachutes" are penal clauses (clauses pénales) and as such, the compensation provided can be reduced to court, if the judge considers them excessive.

Even if today, this kind of clause is rather reserved for the executives, any employee whose know-how is sought, as it is dismissed by his employer, can negotiate a "golden parachute" in order to avoid the Macron scale and thus dissuade his employer from dismissing him.

Example of "golden parachute" clause to insert in your employment contract: "In the event of dismissal or termination of the employment contract at the initiative of the employer, the employee will receive a contractual dismissal compensation of 6 or [12] or [18] or [24] months of gross salary which adds to the conventional dismissal compensation of the collective agreement applicable to the contract. "

Another possibility to increase the compensation due in the event of a break-up is the negotiation of a longer contractual notice (préavis) than that provided by the applicable collective agreement or the law.

Longer contractual notice (préavis contractuel) (for example 6 months, 9 months, 12 months) ensures that the employee's remuneration is maintained during this period in order to amortize his dismissal and, if necessary, to seek a new job more peacefully.

2) Tip n ° 2: Plead to the labor courts that you are in one of the 8 cases of exclusion of capping provided for by Article L. 1235-3-1 of the french Labour Code.

Cases of exclusion from the capping of compensation for dismissal without real and serious cause are expressly provided for in Article L. 1235-3-1 of the Labour Code (art.2 ord n ​​° 2017-1387 of  September 22nd, 2017).

In this respect, Article L. 1235-3 is not applicable when the judge finds that the dismissal is tainted with one of the 8 nullities provided for in the second paragraph of Article L. 1235-3-1 of the Labour Code.

The "nullities" (nullités) are those relating to the violation of a fundamental freedom (violation d’une liberté fondamentale), to acts of moral or sexual harassment(harcèlement moral ou sexuel) under the conditions mentioned in Articles L. 1152-3 and L. 1153-4, to a discriminatory dismissal under the conditions provided for Articles L. 1134-4 and L. 1132-4 or following an action in court, for gender equality at the workplace under the conditions mentioned in Article L. 1144-3 and in case of denunciation of crimes or misdemeanors, or the exercise of a mandate by a protected employee mentioned in chapter I of title I of book IV of the second part, as well as to the protections of certain employees in application of articles L. 1225-71 and L. 1226-13.

In these cases, when the employee does not request the continuation of his employment contract or his reinstatement is impossible, the judge awards him an indemnity, paid by the employer, which cannot be less than the wages last six months (no matter the size of the company).

The indemnity is then payable without prejudice to the payment of the salary, which would have been collected during the period covered by the invalidity when it is due pursuant to the provisions of Article L. 1225-71 and the protective status and, where appropriate, legal, contractual or conventional compensation.

  • Case 1: Nullity related to the violation of a fundamental freedom (liberté fondamentale)

The Macron scale (Barème Macron) will be rejected as soon as such dismissal is pronounced in violation of a fundamental freedom.

This would be the case, for example, of a dismissal based on the exercise by the employee of his right to strike.

  • Case 2: Nullity related to acts of moral or sexual harassment (harcèlement moral ou sexuel) under the conditions mentioned in Articles L. 1152-3 and L. 1153-4

Capping on compensation will also not apply each time the dismissal of the employee is made in a context of moral or sexual harassment.

However, the courts are (and probably will be) very strict in the assessment of moral or sexual harassment or violation of a fundamental freedom.

  • Case 3: Nullity relating to a discriminatory dismissal (licenciement discriminatoire) under the conditions provided for in Articles L. 1134-4 and L. 1132-4

Similarly, no capping will apply to dismissals that are discriminatory, that is to say, pronounced because of the origin of the employee, his sex, his morals, his sexual orientation, his gender identity, age, family status or pregnancy, genetic characteristics, particular vulnerability resulting from economic status, apparent or known to the perpetrator, belonging or non-belonging, true or assumed , an ethnic group, a nation or an alleged race, its political opinions, its trade union or mutual activities, its religious beliefs, its physical appearance, its surname, its place of residence or its bank domiciliation or because of his state of health, loss of autonomy or disability, ability to express himself in a language other than French.

  • Case 4: Nullity of dismissal following a lawsuit

The employee who is dismissed consecutively to the exercise of a legal action to assert his rights will not be able to be opposed against the scale provided by the ordinances.

  • Case 5: Nullity of a discriminatory dismissal in the matter of professional gender equality under the conditions mentioned in Article L. 1144-3 of French Labour Code

In the same way, the scale will be rejected in the case of a dismissal following a legal action taken by the employee on the basis of provisions relating to professional gender equality.

  • Case 6: Nullity of dismissal in case of denunciation of crimes and misdemeanors

An employee who has been dismissed as a result of his denunciation of crimes or misdemeanors of which he is aware, cannot be opposed to the scale of Macron ordinances.

This is particularly the case of employees whistleblowers who would be sanctioned following the denunciation of the practices of their employer.

  • Case 7: Nullity of dismissal linked to the exercise of a mandate by a protected employee (salarié protégé) mentioned in Chapter I of Title I of Book IV of Part Two (see "Tip 4")
  • Case 8: Nullity related to a dismissal because related to the protections of certain employees in application of articles L. 1225-71 (dismissal related to the state of pregnancy) and L. 1226-13 (accident at work or illness)

Finally, dismissal in breach of special protection such as protection against dismissal in case of pregnancy or accident at work or occupational disease will avoid the ceiling.

3) Tip n° 3: Make claims to labour courts other than a claim for compensation for the prejudice caused by your unfair dismissal: ex: request for overtime payment, allowance for covert work (travail dissimulé), damages for moral harassment, recall bonus, salary reminder related to unequal treatment, etc.

Example 1: Requests for overtime (heures supplémentaires) and covert work (travail dissimulé)

Overtime claims are not included in capping provided by Macron Ordinances.

For employees whose working time is determined on the basis of a certain number of days (forfait jours), it is possible to ask for the cancellation of the working time organization if there is no control of the workload (charge de travail) related to this organization; in this case, the employee can obtain payment of his/her overtime within the limit of the prescription, provided he can prove it.

Similarly, a salaried executive who does not fulfill the 4 legal conditions relating to this status (ie: autonomy, great responsibility, salary among the highest of the company and belonging to the management of the company) may request nullity of this status and get the payment of his overtime (heures supplémentaires) if he can prove it (proof by an agenda with the start and end time each day, emails sent early in the morning and late at night etc.).

Example 2: Request a bonus

A bonus request may also be added to dismissal requests. An employee may request a bonus if the targets assigned to him/her are unrealistic and not reasonable, or if they were not brought to his attention at the beginning.

In such a case, the employee is entitled to claim 100% of the bonus he could have claimed if he had achieved all of his objectives. Again, no capping applies.

Example 3: Claim for damages for harassment (harcèlement moral ou sexuel)

Likewise, the employee who demonstrates that he is in a situation of harassment, whether moral or sexual, is entitled to claim damages to the Labour Court for the damages suffered.

To do this, the employee must provide elements likely to suggest the existence of a situation of harassment.

In this case, the damages may be cumulated with the dismissal compensation without capping limit.

Example 4: Salary reminder related to unequal treatment

The employee may also make a request for salary reminder based on unequal treatment, as long as he demonstrates that he received a lower salary than his colleagues in the same position with equivalent qualifications and seniority.

Once again, no cap applies to such a request.

4) Tip n°4: Get a union mandate (représentant syndical), a staff delegate (délégué du personnel) or a workers council member (membre du comité d’entreprise) to make it harder to fire

A warrant is the best way to deter your employer from firing you.

Your employer may reproach you for "instrumentalizing your mandate" but he will not be able to do anything except to challenge your election or appointment to the Court (Tribunal d’instance).

Protected employees (union mandate or staff representative) cannot be dismissed without authorization from the labor inspectorate (Inspection du travail).

However, labor inspectors are reluctant and very strict to grant the authorization of dismissal of a protected employee.

An employee who warrants a mandate will therefore be in practice better protected against dismissal.

He will also be better compensated if he is dismissed without authorization since, if necessary, his dismissal will be void and he will be able to apply for reinstatement and an eviction indemnity corresponding to the wages he should have received between the date of his dismissal and the expiry of the period of protection.

Frédéric CHHUM

Avocats à la Cour (Paris et Nantes)

. 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

e-mail : chhum@chhum-avocats.com

Blog : www.chhum-avocats.fr

http://twitter.com/#!/fchhum

 

 

Par frederic.chhum le 06/01/14

The "rupture conventionnelle" was originally intended to be marginal. But nobody anticipated such a success: it became one of Nicolas Sarkozy's quiquennium's flagship projects (more than 1,2 million of mutually agreed terminations have been signed since 2008).

1) Definition and Interest of concluding a mutual agreed termination (rupture conventionnelle)

The mutually agreed termination (rupture conventionnelle) allows the employer and the employee to terminate the employment contract by a mutual agreement.

Each party has its advantage. For example, the employer is exempt from the labor law requirements (deadlines, procedures, notice ...) inherent to dismissal and the employee sees benefits compared to the resignation procedure. He/she will receive an indemnity when he/she will conclude a mutual agreed termination and especially will be eligible for French unemployment benefit (allocations chômage).

However, this measure has been largely misused. Actually, companies often convene employees and tell them: "You can choose between mutually agreed termination (rupture conventionnelle) and a dismissal!”

So, how much to negotiate its mutually agreed termination (rupture conventionnelle)?

2) How much my company has to pay me if I conclude a mutually agreed termination?

Your employer has to pay you at least a specific allowance (indemnité spécifique de rupture), and the amount can't be less than the dismissal indemnity applicable in the company's collective bargaining agreement, or failing that, to the dismissal indemnity according to the French labor code (Article R.1234-2 of the French labor code).

However, this amount is a minimum, and it is negotiable.

3) How much to negotiate its mutual agreed termination?

To negotiate at best, you need to assess the indemnity you could get before the labor law tribunal in case of unfair dismissal.

Thus, the mutually agreed termination's indemnity to negotiate shall be the sum of the following four amounts:

3.1) The amount of compensation in lieu of notice: the duration of your notice period is provided by the collective agreement applicable in your company (1 to 3 months depending on whether you are an employee or a managerial employee (cadre));

3.2) The amount of the holiday pay on notice, equal to 10% of the gross amount of your compensation payment notice;

3.3) The amount of the contractual dismissal indemnity (under the collective agreement applicable in your company) or, alternatively, the statutory dismissal indemnity (Article R.1234-2 of the French labor law);

4) "Supra-legal" compensation:

* If you have more than 2 years of service within your company and working in a company employing more than 10 employees:

o If you have between 2 and 5 years of service within your company: the supra legal compensation should be equivalent to six months' salary;

o If you are between 5 and 10 years of service within your company: the supra legal compensation should be equivalent to 12 months' salary;

o If you are between 10 and 20 years of service within your company : the supra legal compensation should be equivalent to 15 months' salary;

o If you are over 20 years of service: the equivalent of 20 months' salary;

* If you have less than 2 years of service and working in a company with fewer than 11 employees: between 1 and 6 months of salary.

You must also obtain the balance of the unused holiday paid remaining.

The salary to be taken into account for the calculation of the above amounts, according to the most advantageous formula for you:

o Either one-twelfth of your annual gross salary of the twelve months preceeding the dismissal;

o Or the average of the latest three months.

5) Net or gross amount of the indemnity?

Finally, it should be noted that the negotiation must be done on a net amount (not gross) the indemnity paid under a mutually agreed termination is subject to CSG / CRDS.

Of course, in all cases, it is recommended for employees to be assisted by a lawyer/avocat.

Frédéric CHHUM Avocat à la Cour 4, rue Bayard 75008 Paris

Tél : 01.42.89.24.48 Ligne directe: 01.42.56.03.00

e-mail : chhum@chhum-avocats.com

blog: http://avocats.fr/space/avocat-chhum

http://twitter.com/#!/fchhum