The title of this article may seem totally incongruous (even provocative) but it nonetheless covers a current current practice within companies.
However, in practice, it is not uncommon for an employee to be offered the following alternative by his employer: either he accepts a contractual termination, or he will be dismissed for economic reasons.
Indeed, the employer may have a double interest in proposing a contractual termination: when there is no economic reason and / or to limit any risk of subsequent litigation, it being specified that a contractual termination can only be canceled if the employee demonstrates that he was the victim of a defect in consent.
In such a situation, then what is the best choice for the employee?
Through this article, we will explain to you why it is always better to prefer an economic dismissal to a rupture conventionnelle unless the employee ultimately obtains the equivalent of legal and conventional indemnities for redundancy as well as compensation for unjustified dismissal at the ceiling. of the Maron scale (see § 5 below).
5) How much to negotiate his contractual termination (rupture conventionnelle) in a context of redundancy?
If, despite the benefits of redundancy, the employee wishes to accept a contractual termination, he must be vigilant in negotiating it.
Indeed, the “ rupture conventionnelle ” has become so widespread that now (it is being diverted), and (well advised) employers almost systematically attempt to negotiate a contractual termination before initiating a dismissal procedure.
However, in this negotiation, employer and employees are not on an equal footing.
It is indeed difficult for an employee to know what he is entitled to and how far he can go in negotiating its “rupture conventionnelle”.
Especially since in practice, in 50% of cases, the “ rupture conventionnelle ” is in reality a disguised "low cost" dismissal.
Employees must therefore know how to negotiate their departure.
In this regard, the employee must try to obtain by “ rupture conventionnelle ” what he would have obtained in the event of dismissal without real and serious cause. They are strongly advised to be assisted by a lawyer who will determine the extent of their rights.
To find out how much to negotiate his “ rupture conventionnelle ”, we refer you to our previous article Employees, executives, senior executives: how much to negotiate his contractual termination after the Macron orders? https://www.village-justice.com/articles/salaries-cadres-cadres-dirigeants-combien-negociation-rupture-conventionnelle,27827.html.
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Frédéric CHHUM avocat et membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)
CHHUM AVOCATS (Paris, Nantes, Lille)
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