Resignation

The resignation is a mode of rupture of the unspecified work contract at duration on the initiative of the employee: it is a unilateral act of will, emanating from the employee, to break the Work contract linking it with its employer.

Without legal formalism

The law does not impose any formalism on the resignation:

  • It can result from a letter signed by the interested party.
  • It can sometimes result from the behavior of paid which can be revealing of its intention to resign. He is thus of the recruiting in another employer.
  • It can be verbal.

However, to avoid the disputes on the intention to even resign or the completion date of the work contract, the employee may find it beneficial to give his written resignation (if possible by registered letter with notice of receipt).

Controlled and, if necessary, requalified by the Court of arbitration

The disadvantages, for the employee, resulting from this absence of formalism are gummed by the requirements of the Jurisprudence with regard to the characters of this will of the employee to resign who must be free, serious and unambiguous:

  1. an unambiguous will : The judges draw aside the qualification of resignation each time the will of the employee is ambiguity. Thus, the resignation should not évoir deduced by the employer from the behavior from the paid one: “the absence of the employee, following his paid vacations, does not constitute an unambiguous will to resign” (Cass.Soc., 10/20/82, Bull.V n° 559). The character ambiguity or not of the resignation remains however largely left with the appreciation of the judges.

  2. a freely emitted will : jurisprudence requalifies the resignation of paid in Licenciement each time the employee was constrained with the “resignation” by the faulty behavior of his employer. The nature of the fault of the employer must take on a certain degree of gravity as follows (Cass.Soc., 1/13/93, RJS 2/93, n°127):
  3. * When the employee resigned under the constraint, or following a faulty behavior of the employer, jurisprudence requalifies the resignation in dismissal. Examples: the employee puts a final term at his contract because its employer does not pay him the which had wages, coiled it blows, obliges it to work under dangerous conditions or a unilateral modification of its work contract imposes to him. Is regarded as faulty the employer who constrained his wage-earner to write and sign a resignation letter and which even recognizes him as it wished that the wage-earner resign.
  4. * is regarded as faulty the employer who under the inspiration of a guilty animosity and by various processes and operations, makes increasingly impossible for an employee the exercise of his contractual activity (Cass.Soc, 10/7/70, Bull.V n° 503)
  5. * is regarded as faulty the employer who does not pay the entirety of the compensation of employees; the rupture is analyzed in a dismissal because the employer, by his fact, made impossible for the employee the continuation of the work contract and has constrained it to resign (Cass.Soc.14/11/95, Gutkencht c/SARL INCC)
  6. a serious will : A resignation can be requalified in a Licenciement with the reason which it is not serious taking into consideration consequence that it involves: “Resignation given in a movement of mood at the time of an incident concerning work, and disputed the following day” (Cass.Soc., 9/27/89, Cah.Prud n°2-90)

The resignation must thus result from a clear and unambiguous demonstration of its will to break its work contract. Thus, whatever its form, the resignation is not supposed and can result only from one clear and unambiguous act (Cass.Soc., 12/12/91, Bull.V n° 576; Cass.Soc., 5/7/87, n°84-42.203).

As follows:

  • “the refusal by an employee to continue or resume work does not characterize a clear and unambiguous resignation, but constitutes in theory, an serious error which it is up to the employer to sanction by a dismissal” (Cass.Soc., 6/10/97, n°95-41.178, RJS 8-9/97 n°955)
  • “the resignation not being supposed, the absence of the employee, was it unjustified, does not characterize a clear and unambiguous will to resign (Cass.Soc., September 22nd, 1993, n°91-43.580, juris.actua n°6933 of November 8th, 1993). If the abandonment of station does not constitute a real and serious demonstration to resign, he is generally regarded as a privative serious error of the allowances of rupture (Cass.Soc., 7/11/89, n°86-44.848)
  • “in the absence of a resignation of the wage-earner, he was impossible to charge to him the responsibility for the rupture of the work contract” (Cass.Soc., 5/30/2000, Bull.V n° 207).

Effect of the requalification of the resignation in dismissal

The Licenciement is without Real cause and serious since the employer, who prevailed himself only of one resignation or an absence, did not state reasons for dismissal (Cass.Soc., 7/8/92, co. Armafrance c/Foucade, Bull.V n° 748)

An obligatory notice, allowance of abrupt rupture

“Considering article 1147 of the Civil code; Waited until the court of arbitration, after having noted that the employee had resigned, granted to the employer a compensation corresponding to the conventional notice not carried out; that he also condemned the employee of the payment of an allowance for abrupt rupture; That by thus ruling, whereas in the absence of manifest abuse or of intention to harm of the employee, this one can be held with the payment of another allowance only that corresponding to the conventional notice, the court of arbitration the text referred to above violated” (Cass.Soc. 11/16/2004, n°02-46135)

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