VARIOUS FORMS OF BREACH OF THE WORK CONTRACT
There are different forms of dismissal in France such as dismissal for personal reasons, dismissal for economics reasons or conventional break. In this article we explain the main form of breach of contract and the procedure to follow.
I- DISMISSAL FOR PERSONAL REASONS:
Definition of the personal motive:
There is no legal definition but it is essential that there is a real and serious cause. The term "real" means that the reason for the dismissal must be established and proven, the word "serious" suggests that the reason for dismissal must be serious enough to justify the break-up. Since a recent reform of labor law, insufficient motivation for dismissal is no longer a cause of nullity of the procedure.
The main reasons for this type of dismissal are:
- Serious fault or gross negligence,
- Non-culpable facts but facts related to the worker, when these facts affect the operation of the business,
- Sickness: Only when prolonged absence or repeated absences interfere with the operation of the business,
- Refusal of a modification of the employment contract by the employee,
- Foreign worker in an irregular situation.
Any dismissal for personal reasons necessarily implies the respect of the procedure which takes place in three stages:
- The convocation of the employee to a preliminary interview by registered letter with acknowledgment of receipt or hand delivery against discharge. This letter must specify, among other things, that the employee can be assisted during the interview.
- The hearing of the employee. The employer may be represented by a person belonging to the company with the power of representation (not necessarily written).
The employer is required to indicate the reason (s) for dismissal and to hear the employee's explanations.
- Notification of dismissal. When the employer maintains his position, he must notify the dismissal by registered letter with acknowledgment of receipt at least two working days after the interview. The date of departure of the employee is indicated, this date must take into account the period of legal or conventional prior notice.
II- DISMISSAL FOR ECONOMIC REASONS:
Job retention agreements:
Firms in financial difficulty may enter into agreements between the employer and the shop stewards or other workers 'representatives to maintain jobs. In return, employees will make concessions in terms of hours of work, work organization or compensation. As soon as the agreements are voted by unions representing at least 50% of the votes, or by the majority of employees, the employer may proceed with the modification of employment contracts. He can then dismiss for economic reasons the employees who refuse the agreement.
Definition of the economic motive:
This is a reason unrelated to the employee's person. It results solely from the suppression of jobs or the refusal to modify his employment contract by an employee.
The deletion of post must be related to one of the following topics:
- Economic difficulties,
- Technological changes,
- A reorganization of the company necessary to maintain its competitiveness,
- The cessation of activity.
Prevention and dismissal order:
The employer must ensure that employees are adapted to their job before making an economic redundancy.
"Predictive management of jobs and skills" is a compulsory legal procedure in companies with 300 or more employees. It is optional in other companies.
In addition, the employer must choose the people to dismiss, it can also organize a collective conventional breach.
- Individual dismissal:
- Preliminary interview: During this interview the employer will have to give the employee the documents issued by "POLE EMPLOI" named in French (PROPOSITION D’UN CONTRAT DE SECURISATION PROFESSIONNELLE) and tell him the reasons for the break.
- Notification of dismissal: It will be mandatory by registered letter with acknowledgment of receipt, and the date of departure of the employee must respect the period of notice.
- Collective dismissal:
The procedure is more complex and varies according to the number of people dismissed over a period of 30 days. To know some of them in detail, you should contact a chartered accountant specializing in employment law.
III- CONVENTIONAL BREAK:
It is a negotiated break between the employer and the employee, but this break must be done according to a precise procedure. The steps in this procedure are as follows:
- One or more interviews between the employer and the employee (the employee can be assisted during the interview),
- The drafting of an agreement which mainly fixes the amount of the termination indemnity and the end date of the employment contract. From the date of the signing of the agreement, the employer and the employee have 15 days to retract.
- Homologation of the agreement by the regional labor office (D.I.R.E.C.C.T.E.).
At the end of the procedure, the employee will be entitled to compensation for unemployment insurance.
In conclusion, there are other forms of breach of contract that are:
- The departure of a retired employee,
- Retirement by the employer,
- Taking of the act of breaking a contract of employment,
- Judicial termination,
- The break for force majeure.
A special legal procedure is attached to each of these cases. Don’t hesitate to contact us for details of each.