1) Solutions relating to the context of the rupture of the conventional rupture (rupture conventionnelle)

When a protected employee is subject to a contractual breach canceled by decision of the Minister of Labor, he must be reinstated in the company, on his post or an equivalent post.

On May 15th, 2019 (n ° 17-28547) (5), the judges of the High Court considered that "when the employer has not satisfied this obligation, without justifying an impossibility of reinstatement" then "the judicial termination pronounced wrongful of the employer for this reason produces the effects of a dismissal void ”.

Adopting a much more liberal position a few days earlier on May 9, 2019 (n ° 17-28767) (6), the same judges had declared the validity of a contractual breach concluded with an incapacitated employee: "except in cases of fraud or defect of consent, not alleged in the present case, a termination agreement could be validly concluded by an employee declared unfit for his post following an industrial accident ”.

The Court of Cassation displayed a strict interpretation of the system by increasing the cases of nullity of the contractual breach while adopting a flexible position on other points.

2) Solutions relating to the procedure for contractual termination

In a rather rigorous interpretation, the Court of Cassation ruled, on July 3, 2019 (n ° 17-14232) (1), that "only the delivery to the employee of a copy of the agreement signed by the two parties allows him to request the approval of the agreement and to exercise its right of withdrawal with full knowledge of the facts ”.

Thus, the judges accentuated the requirements in terms of formalism surrounding the conclusion of the contractual breach in that it shows the need for the employer to spare the proof of the delivery to the employee of a signed copy of the CERFA form (formulaire cerfa).

The sanction is such that if this proof is not presented, the breach of agreement is void.

A similar penalty is incurred in the event that "the date of signing of the termination agreement, not mentioned on the agreement, was uncertain and it was not allowed to determine the starting point of the withdrawal period".

Such is the expectation of the Court of Cassation of March 27, 2019 (n° 17-23586) (2), which therefore considers that the termination of the employment contract is "without real and serious cause".

On the other hand, according to a judgment of June 5, 2019 (n ° 18-10901) (3), the nullity of the contractual breach cannot be declared solely because of “the assistance of the employer during the prior interview at the signing of the termination agreement ”. This assistance must have "created a constraint or pressure for the employee who comes to the interview alone".

The Court of Cassation therefore adds an additional condition to the provisions of the Labor Code which, however, provides, in its article L. 1237-12 (4), that “the employer has the right to be assisted when the employee does so. use itself ".


(1) Cass., Soc., July 3, 2019, n ° 17-14232: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000038762761

 (2) Cass., Soc., March 27, 2019, n ° 17-23586: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000038373489

(3) Cass., Soc., June 5, 2019, n ° 18-10901: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000038629629

(4) L. 1237-12, Labor code: https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000019071185&cidTexte=LEGITEXT000006072050&dateTexte=20080627

(5) Cass., Soc., May 15, 2019, n ° 17-28547: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000038507997

(6) Cass., Soc., May 9, 2019, n ° 17-28767: https://www.legifrance.gouv.fr/affichJuriJudi.do?idTexte=JURITEXT000038488601

Read or re-read our other CHHUM AVOCATS (Paris, Nantes, Lille) articles:

. Conventional termination: details on the formalism of the signing of the agreement.


. Conventional breach: details from the Court of Cassation on the right of withdrawal.


. Conventional rupture interview: details concerning the assistance of the employer.


. Conventional termination: compliance with the regime applicable to employees eligible for a retirement pension (pension de retraite).


. Invalidity of an undated conventional rupture.



Frédéric CHHUM, Avocats à la Cour et membre du conseil de l’ordre des avocats de Paris

Claire Chardès juriste

e-mail : chhum@chhum-avocats.com




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