According to established case law, an employee can acknowledge the termination of their employment contract due to shortcomings they attribute to their employer.
When seized by the employee, the judge must then rule on the attribution of the termination and judge whether the employer's shortcomings were or were not serious enough to justify the termination at the employer's fault.
The employee who has acknowledged the termination of his employment contract must provide evidence of breaches that prevent the continuation of his employment contract ( Cass. soc. 30 March 2010, n°08-44.236 ).
This rupture produces the following effects:
- A dismissal without just cause if the facts invoked justify the employee's resignation,
- Or, conversely, a resignation.
If the employee's legal action fails, the employee is considered to have resigned and may be ordered to compensate their employer for the notice period not worked.
The Court of Cassation was recently asked by the Nantes Industrial Tribunal to rule on the relationship between the mechanism of unilateral termination of employment and Article 1226 of the Civil Code , which relates to the unilateral termination of a contract and provides that:
"The creditor may, at his own risk, terminate the contract by means of notification. Except in cases of urgency, he must first formally demand that the defaulting debtor fulfill his obligation within a reasonable time.".
The formal notice expressly states that if the debtor fails to fulfill their obligation, the creditor will be entitled to terminate the contract.
When non-performance persists, the creditor notifies the debtor of the termination of the contract and the reasons for it.
The debtor may at any time appeal to the judge to contest the termination. The creditor must then prove the seriousness of the breach.
Unilateral termination, the principle of which had been recognized by case law even before the reform of contract law, appears to be at the heart of the acknowledgment of the termination.
Since an employment contract is naturally a contract, it was therefore legitimate to question the application of these conditions to the mechanism of acknowledging the termination.
Especially since Article 1226 of the Civil Code imposes, even more rigorously than case law already did regarding unilateral termination:
- A prior formal notice to the defaulting debtor,
- A notification of the resolution and the reasons behind it.
The Nantes Industrial Tribunal was therefore naturally led to refer the following question to the Court of Cassation: must the employee give formal notice to his employer prior to his decision to take action?
In an opinion dated April 3, 2019 ( Cass. opinion, April 3, 2019, No. 15003 ) , the Court of Cassation answered in the negative:
"The methods of terminating an employment contract, whether initiated by the employer or the employee, are governed by specific rules and have specific consequences, so the provisions of Article 1226 of the Civil Code do not apply to them.".
In doing so, in our view, the Court did not only rule on the question of whether a prior formal notice was required.
Indeed, by its very general formulation, it excluded the application of article 1226 of the Civil Code in the event of an employee's formal acknowledgment of the termination of their employment contract.
It therefore also excluded the need for the employee to notify his employer of the reasons for his resignation.
This position appears in line with the case law which held that the letter of acknowledgment does not set the limits of the dispute ( Cass. soc., June 29, 2005, No. 03-42.804 , Cass. soc., January 24, 2007, No. 05-41.670 , Cass. soc., February 10, 2010, No. 08-43.138 , Cass. soc., July 9, 2014, No. 13-15.892 ).
In view of this opinion, it therefore does not appear that a termination notice which was not preceded by a formal notice or which was made by means of a letter which did not state the breaches alleged against the employer can be further criticized, even after the entry into force of the reform of contract law.
This is certainly not the least of the questions raised by the reform of contract law, even in social matters…
