Let's continue with our exploration of alternative modes of termination of the contract of employment to dismissal and resignation.
Warning: the act of breaking is a purely jurisprudential creation fairly recent in its current form (less than five years), which explains the profusion of jurisprudential references in this article. You will not find the concept in the Labor Code.
The Court of Cassation was forced to address the issue because of the behavior of some employees and employers who reversed the roles: the employee by practicing what was called "self-dismissal", the employer by "resigning" his employee.
The title of the article reveals a great truth. Contrary to what some employers think, it is impossible for them to take note of the termination of their employee's employment contract at the expense of the latter.
Indeed, since two jurisprudence of June 25, 2003 (01-41.151 and 01-40.235), the Court of Cassation considers that the rupture of the employment contract on the initiative of the employer, except procedure of dismissal, must be requalified in dismissal without real and serious cause.
In this way, the employer can not notify the employee that he considers him to be "resigning" for any reason whatsoever.
This point being clear, let's see the big topic: the taking action on the initiative of the employee.
I am going through all the long lines of jurisprudence for almost a decade to arrive at a consistent treatment of this kind of situation.
Remember that the act of breaking the contract of employment to the fault of the employer is the fact for the employee to announce to the latter (usually by registered letter with acknowledgment of receipt) that it ends his contract because of a number of grievances he accuses his employer.
Even though initially, the Court of Cassation had held that an employee could not take note of the breach of his employment contract to the fault of the employers when he had initiated a legal action to request the execution of that contract (decision of 8 July 2003, no. 02-45.092), it logically returned to its position by a judgment of 21 December 2006 (04-43.886) in which it states that "an employee who acts in court against his employer in fulfillment of an obligation arising from the employment contract may always take note of the breach of the contract, whether because of the facts he referred to the labor court or for other facts ".
Similarly, whereas it had initially decided that the letter of act of rupture determined the limits of the dispute (like the letter of dismissal) (decision of 19 October 2004, no. 45.742), it made a reversal in a judgment of 29 June 2005 (03-42.804) in which it states that "the writing by which the employee takes note of the termination of the employment contract because of facts that he accuses his employer does not set the limits of the dispute.The judge is required to examine the employer's breaches invoked before him by the employee even if he did not mention them in this writing. "
When I told you that the notion has been the subject of a lot of trial and error …
It must first be known that this mode of rupture is autonomous, ie it is neither a resignation nor a dismissal.
Moreover, contrary to what some people think, the judge hearing the application for interim relief does not have the power to pronounce on the imputability of the termination of a contract of employment, which remains within the jurisdiction of the trial judge, and even when the employer's failure is flagrant: for example, non-payment of wages (decision of 11 May 2005, no. 03-45.228).
To assess its scope, the Court of Cassation, in its three judgments of 25 June 2003 (01-42.335, 01-42.679 and 01-43.578) states that "when an employee takes note of the termination of his employment contract in because of the fact that he blames his employer, this rupture produces the effects either of a dismissal without real and serious cause if the facts invoked justifi