The bill on emergency measures relating to the functioning of the labor market with a view to full employment was adopted by the National Assembly on October 11, 2022 at first reading.
Amendment 393 of 30th September 2022 now appears in Article 1 bis A of the bill on emergency measures relating to the functioning of the labor market with a view to full employment. https://www.senat.fr/leg/pjl22-044.html
1) The text of the amendment now Article 1 bis A of the bill on emergency measures relating to the functioning of the labor market with a view to full employment
The amendment provides for supplementing article 5 of the bill with a new article L. 1237-1-1 of the French labor code as follows
" Art. L. 1237-1-1 – The employee who has voluntarily abandoned his position and does not return to work after being given formal notice to this end, by registered letter or by letter delivered by hand against discharge, is presumed to have resigned.
An employee who disputes the termination of his employment contract on the basis of this presumption may appeal to the industrial tribunal.
The case is brought directly before the judgment office, which decides on the nature of the rupture and the associated consequences.
It decides on the merits within a period of one month following its referral.
A Conseil d'Etat decree shall determine the terms and conditions for the execution of this article. ".
2) Criticism of amendment no. 393 and of the new article L. 1237-1-1 of the labor code
This amendment no. 393 aims to exclude from the benefit of unemployment insurance employees dismissed for job abandonment.
Surprisingly, the amendment does not tend to modify the unemployment insurance agreement but the labor code.
According to this amendment, the employee who abandons his position would in the future be "presumed to have resigned".
He could then seize the industrial tribunal directly before the judgment office to have it judged that the breach amounts to a dismissal without cause.
And then obtain the Pole Emploi certificate, an essential key to obtaining Pole Emploi benefits.
In our view, this amendment is open to criticism for the following reasons:
2.1) There are no statistics on the number of dismissals for job abandonment that would justify the implementation of such a measure.
To our knowledge, there has been no impact study on this subject.
This amendment has the effect of ostracizing employees who abandon their position.
Knowing that this abandonment of position may result from suffering at work, moral or sexual harassment or any other failure by the employer.
2.2) Resignation is not presumed.
Resignation is the act by which the employee informs his employer of his decision to terminate his employment contract (Memento Pratique Lefebvre 2022, n° 69005).
It must result from a clear and unequivocal will of the employee.
Establishing a presumption of resignation would totally change the paradigm on the right to resign.
2.3) Currently, whatever the reason for dismissal (serious or gross negligence, economic), an employee is eligible for unemployment benefits provided that he has worked at least 6 months during the last 24 or 36 months, that he is involuntarily unemployed and residing in mainland France, in an overseas department or in an overseas community concerned by this scheme. https://www.unedic.org/compensation/vos-questions-sur-compensation-insurance-chomage/qui-beneficie-des-allocations
If this amendment is voted, it amounts to better treating an employee dismissed for gross negligence (that is to say, dismissed with the intention of harming his employer) than an employee who abandons his position!
2.4) The amendment provides that the employee can seize the industrial tribunal to have the “presumed resignation” judged as dismissal without cause.
This is a decoy.
In practice, it will be almost impossible for the employee to be judged within a month.
If the case is heard within one month, the employee exposes himself to a request for referral of the case, so that his employer (or his counsel) can prepare his case.
In practice, the employee has little chance of obtaining a judgment for several months.
This will probably dissuade him from knocking on the door of Pole Emploi to claim benefits.
2.5) The employee may however, if he has not found a job after 4 months (121 days) and if he can justify sufficient job searches, ask to benefit from unemployment benefits after having gone before a joint committee of Pole Emploi.
3) Practical aspects
3.1) Referral to the industrial tribunal by the employee to have the "presumed resignation" produce the effects of a formal act to the fault of the employer
The employee will be able to seize the industrial tribunal so that the latter has his “presumed resignation” produced in deed at the expense of the employer.
If he can justify serious misconduct on the part of his employer, the employee may ask the industrial tribunal to have his "presumed resignation" produce the effects of a null dismissal (in the event of moral harassment) or without real cause. and serious (in case of serious misconduct).
3.2) Is the dismissal for job abandonment still open to the French employer? yes !
In our opinion, nothing prohibits the employer from notifying the employee who abandons his position of a dismissal after the entry into force of the law below.
This will avoid the legal risk described in paragraph 4.1 above inherent in any procedure.
Indeed, unless modified on this point, Pole Emploi does not check the reason for dismissal.
4) Effective Date of Application
The law will enter into force the day after its publication in the official journal.
These provisions will only be applicable to terminations of employment contracts after the publication of the law in the official journal.
Abandonments of positions prior to the publication of the law will not be affected by the reform.
Sources:
Amendement n°276 du 30 septembre 2022https://www.assemblee-nationale.fr/dyn/16/amendements/0276/AN/393.pdf
Projet de loi portant mesures d’urgence relatives au fonctionnement du marché du travail en vue du plein emploi. https://www.senat.fr/leg/pjl22-044.html
Prise d’acte d’un chef de projet = licenciement nul en cas de forfait jours nul et de harcèlement moral (CA Versailles 3 nov. 2021) https://www.village-justice.com/articles/prise-acte-chef-projet-obtient-144-387-euros-pour-forfait-jours-nul-harcelement,41149.html
Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
e-mail: chhum@chhum-avocats.com
https://www.instagram.com/fredericchhum/?hl=fr
.Paris: 34 rue Petrelle 75009 Paris tel: 0142560300
.Nantes: 41, Quai de la Fosse 44000 Nantes tel: 0228442644
.Lille: : 45, Rue Saint Etienne 59000 Lille – Ligne directe +(33) 03.20.57.53.24
Pas de contribution, soyez le premier