According to established case law, the employee can take note of the termination of his employment contract due to breaches of which he blames his employer.
Referred to by the employee, the judge must then rule on the imputability of the termination and judge whether or not the employer's breaches were sufficiently serious to justify the termination to the latter's fault.
The employee who has taken note of the termination of his employment contract must provide proof of breaches hindering the continuation of his employment contract ( Cass. soc. March 30, 2010, n°08-44.236 ).
This rupture produces the effects either:
- A dismissal without real and serious cause if the facts invoked justify the taking of action,
- Or, in the opposite case, a resignation.
If the employee's legal action fails, he is considered to have resigned and is likely to incur an order to compensate his employer for the notice not given.
The Court of Cassation was recently seized by the Nantes Labor Court of the question of the articulation of the mechanism of noting the breach with article 1226 of the Civil Code , relating to unilateral termination of a contract, which provides that:
“The creditor may, at his own risk and peril, terminate the contract by notice. Except in an emergency, he must first give formal notice to the defaulting debtor to fulfill his commitment within a reasonable time.
The formal notice expressly mentions that if the debtor fails to meet his 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 seize the judge to contest the resolution. The creditor must then prove the seriousness of the non-performance”.
Unilateral termination, the principle of which had been accepted by case law even before the reform of contract law, appears to be at the heart of the formalization of termination.
Since the employment contract is naturally a contract, it was therefore legitimate to wonder about the application of these conditions to the mechanism for noting the termination.
Especially since article 1226 of the Civil Code imposes, even more rigorously than case law already did in terms of unilateral termination:
- A prior formal notice from the defaulting debtor,
- A notification of the resolution and the reasons for it.
The Nantes industrial tribunal was therefore naturally led to refer the following question to the Court of Cassation: should the employee give notice to his employer prior to his decision to take action?
In an opinion dated April 3, 2019 ( Cass. avis, April 3, 2019, No. 15003 ) , the Court of Cassation answered in the negative:
"The methods of terminating the employment contract, at the initiative of the employer or the employee, are governed by special rules, and carry specific consequences, so that the provisions of article 1226 of the civil code do not are not applicable”.
In doing so, in our view, the Court did not only rule on the question of whether prior notice was required.
Indeed, by its very general wording, it excluded the application of article 1226 of the Civil Code in the event of an act of termination of his employment contract by an employee.
It thus also excluded the need for the employee to notify his employer of the reasons for taking action.
This position appears in the extension of the case law which considered that the letter of acknowledgment does not set the limits of the dispute ( Cass. soc., June 29, 2005, n° 03-42.804 , Cass. soc., Jan. 2007, no. 05-41.670 , Cass. soc., Feb. 10, 2010, no. 08-43.138 , Cass. soc., July 9, 2014, no. 13-15.892 ).
In the light of this opinion, it therefore does not appear that there can be further criticism, even after the entry into force of the reform of contract law, of a noting of the termination not having been preceded by a formal notice or having been made by means of a letter that did not state the breaches of which the employer is accused.
This is certainly not the last of the questions posed by the reform of contract law, even in social matters...
