The circular n°2009-04 of
March, 17th 2009 dealing with the conventional breach of no-ending contracts,
specifies, in particular, the possibilities to use a conventional breach in a
redundancy framework.
Indeed, the Law of June 25th,
2009 already limited the use of the conventional breach by excluding from its
field the part of the French Labor Code about redundancy.
The circular of March, 17th
2009 specifies today such limitation’s impact.
The circular (§1.3 and 1.4)
points out that the conventional breach of contract and its following procedure
are not applicable advantages when a protective provision of the freedom of
consent already exists.
Thus, the out of court
breach of contract, happening in the field of specific agreements as for
example the anticipated management of employments and capacities (“Gestion prévisionnelle des emplois et des
compétences”) or in the field of a social plan (“Plan de sauvegarde de l’emploi” : PSE) is clearly excluded from a
conventional breach field.
Then, the circular explains
the risks of a conventional breach in redundancies framework, especially
collective ones.
In the opposite, if a firm
suffers of economic difficulties, or even applies a social plan to some employments,
it is not enough to exclude the conclusion of a conventional breach agreement.
Nevertheless, the happening
of conventional breaches in such economic context, in a coordinated and
organized way, can constituted deep suspicion evidence of ousting attempts of
the legal redundancy procedure.
To conclude, it is not
strictly forbidden for an employer to negotiate a conventional breach when
redundancies are planned in the firm.
Procedures have to be
separated and independent at that time.
In those circumstances, it
is foreseeable that the Labour Authority (DDTE) will check that the redundancy
procedure would not be ousted.
Frédéric
CHHUM / Anissa YEFTENE
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