Contractual Dismissal Indemnity Negotiation

Extract

[...] The contractual duration must not be such that it prevents the employer from breaking the employment contract91. In default, the judge may reclassify this notice period indemnity as a penal clause, which authorizes him to reduce its amount if he considers it manifestly excessive92. In fact, the Civil Code recognizes the judge's power to moderate the penal clause when it is 'manifestly excessive'. The second paragraph of Article 1231-5 of the Civil Code provides that the judge may, even ex officio, moderate or increase the penalty that had been agreed upon, if it is manifestly excessive or derisory. [...]

[...] This is particularly the case in the event of non-compliance with the clauses of the agreement intended to ensure the protection of health and safety, and in particular to ensure compliance with maximum working hours and rest periods326 or even in the case of non-application of the modalities for controlling working days prescribed by the collective agreement327. For the entire period where the agreement is deprived of effects, the consequences are identical to those of the nullity of the termination agreement328. Thus, the nullity or inapplicability of a forfait agreement has severe consequences for the employer. [...]

[...] This can be explained by a lack of technical and strategic knowledge of prud'homaux judges in the field of negotiation. Thus, while this phase of the procedure should give rise to a genuine dialogue between the parties, it is often reduced to a mere formality, the parties wanting to «get rid of » of this step as quickly as possible. Finally, negotiation during the conciliation phase can be delicate. The employer, aware of the risks involved, will tend to go no further than the compensation provided for by Article L. [...]

[...] One of the other interests to raise the nullity of the dismissal concerns the prescription attached to it. In principle, in accordance with Article L. 1471-1 of the Labour Code, any action relating to the termination of the employment contract prescribes by twelve months from the date of notification of this. Conversely, the prescription period is extended to 5 years, from the knowledge of the facts by the victim, in the event of nullity of the dismissal220. As Isabelle Ayache-Revah and Marion Ayadi assert in practice, the latecomers therefore act on the terrain of nullity, when they are no longer receivable to act on the absence of a real and serious cause of their dismissal »221. [...]

[...] However, although it may seem like a suitable strategy for the plaintiffs to raise the nullity of the dismissal, the regime of null dismissals is subject to very strict rules. In fact, the legislator tightly regulates the different causes that can justify the nullity of the dismissal. In the context of the present study, it is therefore necessary to revisit the most frequently invoked causes of null dismissal by the plaintiffs in order to try to exclude the Macron scale (paragraph 2). §1. The interest in invoking the nullity of the dismissal The main interest of raising the nullity of the dismissal is that Article L. [...]