An employee received, in the context of a conventional termination, specific termination compensation equal to 230,716 euros, the legal compensation for termination was in this case equal to 75,000 euros.
Several months later, the said employee asked his former employer for payment of the financial compensation for the non-competition clause, which he considered had not been explicitly and unequivocally waived when his contract was terminated. employment contract.
His former employer opposes the payment of this financial compensation, on the grounds that, according to him, the employee received specific severance pay of a very high amount, in return for which he formally declared, in the termination, "to have been paid all sums, including and without limitation, any fixed or variable compensation or any additional compensation, compensation of any kind whatsoever, reimbursement of expenses and other sums owed to it by the company in respect of of the performance of the employment contract or because of the conventional breach thereof, and more generally of any de facto or legal relationship that has existed between the parties. »
Can such a wording constitute a waiver of the application of the non-competition clause, even though this waiver did not expressly mention it?
Unsurprisingly, the trial judges, whose decision was confirmed by the Court of Cassation, answered in the negative and granted the employee's request, condemning his ex-employer to have to pay him the sum of 60,750 euros. as a reminder of non-competition indemnity.
The Court of Cassation confirmed this conviction, after recalling its case law according to which “the waiver by the employer of the obligation of non-competition is not presumed and can only result from acts clearly demonstrating the will to waive. »
The waiver of the non-competition clause cannot thus be deduced from a very general formulation appearing in an agreement or a severance agreement: this waiver must be made explicitly by the employer.
Be careful therefore to target the renunciation of the non-competition clause when terminating an employee's employment contract!
