Self-Dismissal: To Be Continued … Or The End?

In five judgments dated 25 June 2003, the Supreme Court clarified and revised the rules governing termination of the employment contract by the employer or the employee for breach.

The Supreme Court confirms that where the employer terminates the employment contract for breach or treats the employment contract as repudiated by the employee, it must institute dismissal proceedings. Failing which, the termination would be treated as a dismissal without cause. This principle is now well established.

On the other hand, the Supreme Court has revised its case law delivered on 26 September 2002 regarding constructive dismissal. The Supreme Court has ruled that where the employee terminates the employment contract on the basis that he considers that the employer has failed to comply with its contractual obligations, this form of termination produces the effects of a dismissal without cause where the employer is found to have breached its contractual obligations or alternatively of a resignation.

This judgment is a step in the right direction.

The employee may no longer ambiguously terminate the contract (that is, without using the word resignation or by resigning and airing his grievances against the employer in order to receive severance pay and damages for dismissal without cause). According to the term used by Professor Jean Emmanuel Ray, the employee may no longer implement his "self-dismissal".

Where the employer considers that the employee's grievances are unfounded, it will consequently no longer be required to instigate dismissal proceedings.

However, given current case law, we consider that if the employer wishes to avoid the risk of legal action, it would be in its interest to instigate dismissal proceedings, where applicable for serious misconduct, depending on the circumstances.

Case law still requires a dismissal letter to be sent to the employee in accordance with the requirements of form set forth by the Labor Code in order to enter into a compromise agreement. In addition, case law does not allow the parties to settle the issue of which party initiated the termination of the employment contract in a compromise agreement.

Nevertheless, we consider that this new case decision may push the Supreme Court to revise this established case law. Why is a dismissal letter required if the employee's letter already formalizes the termination?

Why can the compromise agreement not settle which party terminated the contract, when this is the principal bone of contention between the parties?

It will be interesting to see whether the Supreme Court reviews its position on these two issues.


Group collective agreements: the validity of the principle (Employment Section of the Supreme Court, 30 April 2003)

Following AXA's absorption of UAP, several companies in this group entered into an agreement with the represented trade unions. This agreement introduced trade union representation at group level, which was authorized to negotiate on collective issues in these companies.

The FO trade union, which was not a signatory to this agreement and which attempted to participate in ensuing negotiations with a delegation that failed to comply with the provisions of this agreement, lodged a claim before the courts for the nullification of this agreement.

In a judgment of 30...

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