Summary
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The common point of all breaches of the employment contract
A little reminder: in all cases of termination of the employment contract, the payroll manager will be obliged to establish a “balance of all accounts”.
This procedure involves the payment of all sums due, of which we can give a non-exhaustive list:
- severance pay;
- the payment of paid leave acquired but not used (compensatory allowance);
- the bonuses calculated according to the time of presence;
- the balance of the CET (Time Savings Account), if any;
- the payment of an indemnity in lieu of notice (in the event of exemption by the employer);
- …
The employee’s resignation
Here are the main elements:
- this termination only concerns CDI contracts;
- the resignation can be oral or written (unless the collective agreement requires a written resignation);
- the employee must give notice (except for pregnant employees);
- the employer does not have to pay severance pay;
- the employee cannot in principle benefit from unemployment benefits (except for resignations considered legitimate by Pôle Emploi).
Examples of legitimate resignations:
- minor employee who must follow his parents;
- employee who follows his transferred spouse;
- departure for an international solidarity mission lasting a minimum of one year;
- journalist invoking the conscience clause.
Dismissal of the employee
This termination only concerns CDI contracts
The retirement
A distinction is made between voluntary retirement by the employee and retirement by the employer:
- for voluntary departure, the employee must prove a minimum age and a full-rate pension;
- retirement is automatic at age 70, subject to prior employee consent;
- an indemnity must be paid by the employer (different calculation for voluntary departure and retirement);
- notice must be respected by the employee;
- the employee can then resume an activity within the framework of the combination of employment and retirement.
For more information, do not hesitate to consult our article on retirement.
The death of the employee
This is one of the cases of termination for force majeure;
- the sums corresponding to the wages due will be paid to the widow or widower;
- in the event of an estate managed by a notary, these sums will be added to the estate;
- no severance pay to be paid by the employer (unless a dismissal procedure was in progress before).
The agreed break
The conventional breach only concerns CDI contracts:
- it implies that the two parties concerned are in agreement (employee and employer);
- severance pay is payable (identical to severance pay);
- an agreement must be established, it will be approved by the DIRECCTE (Regional Directorate for Business, Competition, Consumption, Labor and Employment);
- this mode of termination gives right to the payment of unemployment benefits under the conditions of common law.
The negotiated departure
This termination concerns CDI and CDD contracts:
- it implies that the two parties concerned are in agreement (employee and employer);
- severance pay is not payable (unless agreed by the parties, except departure negotiated within an economic framework);
- this break does not require any particular formalism (except in an economic framework);
- unemployment benefits are not necessarily paid by Pôle Emploi except within the framework of an economic procedure.
Acknowledgment of the termination of the employment contract
This termination only concerns CDI contracts:
- only the employee can be at the origin of this rupture;
- he can thus notify his employer that he takes note of the termination of his employment contract due to actions that the employee considers reprehensible (for example the non-respect of weekly rest, unpaid overtime, etc.) ;
- there is no legal formalism even if writing is strongly recommended;
- generally, the Labor Court is then seized by the employee (or the employer);
- it is therefore the judges who will decide whether the taking of an action must be analyzed as a resignation or a dismissal without real and serious cause.
The term of the CDD contract
This termination takes place at the scheduled end of the CDD contract.
A precariousness allowance must be paid to the employee with a rate generally set at 10%, when the contract is not transformed into a permanent contract.
The liquidation of the company
It is the commercial court that makes the decision on liquidation.
- salaries are paid by the trustee (representative of creditors);
- employees are considered “super privileged creditors”, and all sums due will be paid regardless of the state of the company placed in compulsory liquidation;
- these sums are in fact covered by the AGS (Salary Guarantee Insurance), an organization to which companies pay a contribution currently fixed at the rate of 0.30% and paid to the Pôle Emploi.
Content updated on 02/07/2012