The Code of the work is done, said, to protect the jar of Earth, i.e. the employee against the iron pot, mean that the employer. This is true for 90 of its provisions, it remains 10 that are reciprocal obligations also guaranteeing the interests of both parties.
The rules on the notice are part of these 10. When the legislature has ensured that the breach of the contract of employment will not brutally, he thought as well to the employee, who, except in cases of serious misconduct, should not be on the sidewalk of one moment, to the employer, which should be given time to the position that would leave the employee.
Nevertheless, the Act is much more accurate and rigid with regard to the notice required in case of dismissal, which is properly encrypted, to the notice of resignation, for which it refers to conventions and collective agreements or practice, somewhat as in lease where the break is facilitated to the tenant while it is limited to the lessor.
Also a tendency to think that judges to show, on notice, most streaming for employees and employers. A judgment of July 1, 2008 shows that it is a feeling which do not rely.
Working for a real estate company, a framework, tired, he said, by "attitude" of his employer, decided to resign. Thinking demonstrate professionalism, he warns his employer that he gives nine months to complete the files it loads. The letter is therefore delivered on 28 March 2003 for an effective start on January 9, 2004
"Abuse of period of caring".
The employer reaction is not what he expected: leaping at the opportunity, the employer responded that it acknowledges receipt of the resignation, recalls that, for his position, the time limit provided for by the collective agreement is three months and informs him that he intends to exempt to this notice. It is therefore requested to soon get his cheque and work certificate certifying that the contract was terminated on June 27, 2003.
Shocked, the employee decides to enter the labor. For him, "anticipatory" breach of its notice is a wrongful dismissal and claimed all corresponding benefits, termination, damage and interest for failure without real and serious cause and compensatory in lieu of notice.
The person is not at its surprises: he who has thought to make a flower to his employer by giving notice longer than that of the collective agreement is taxed by the Court of appeal "of abuse of the period of caring". As the Court of cassation, rejected his application as follows: "but whereas it follows from article l. 122 - 5 of the Labour Code such that then applicable, in the case of termination of the contract of employment at the initiative of the employee, none of the two parties is based to impose another delay leave different from that provided for by law".the contract or collective agreement or practices; that on the basis of pure law... the judgment which, having found that the employee intended to run a nine months ' notice, while the letter of hire and the collective agreement to set the duration to three months, dismissed claims of the employee, is legally justified. "(Cass. Soc., July 1, 2008, no. 07 - 40 109).
Lack of discernment
The error of the employee is to have thought that the employer would be disabled by his departure and would appreciate an extension of notice. This is certainly true when the employee is appreciated by its hierarchy, but a resignation can also be allowed as a boon when there is an embarrassing disagreement between the two parties but not sufficiently serious to warrant a dismissal. It is this situation that came very opportunely adjust the Act of June 25, 2008 on modernisation of the labour market by introducing the conventional break.
It must also take into account the fact that the employer may not wish to keep a resigned within its walls, even if its relationship with the person concerned are good. It may seek to avoid the temptation to collect reusable information or wanting to prevent him from demotivate colleagues or to slow down projects to the employee. This is why that Act offers the possibility to exempt the employee to perform his notice (v.., art.) L. 1234-5).