A new means of breaking the TDCI: conventional rupture
The friendly rupture of the work contract was always possible. Simply, up to that point, it was not framed by the law: the parties freely defined the conditions of the departure of the company employee.
The law carrying modernization of the job market of June 25th, 2008 revisited the negotiated departure, and speaks from now on about “conventional rupture”.
Here are the broad outlines:
First of all, which can take the initiative of the conventional rupture?
It is known, the TDCI can be broken by the employer, with through the implementation of the procedure of dismissal, or by the employee, within the framework of a resignation.
Independently of these two modes of rupture, the parties which are of agreement to put a term at their contractual relations can henceforth do it by adhering to the formalism of the conventional rupture.
In the absence of agreement, it belongs to the party which intends to break the contract to take the initiative of it.
How to make?
At the conclusion of one or several conversations, the parties determine the procedures of the departure of paid by signing a Convention. Each party has deadline a 15 days calendar to retract.
The validity of the Convention of rupture is subordinated to its homologation by the departmental management of work, employment and vocational training.
Consequently, at the conclusion of the time of retractation, the parties address a request for homologation to the . The aforementioned has a 15 working days deadline to make sure of the respect of the provided for conditions and freedom of the assent of the parties.
The date of final rupture of the contract is fixed in the Convention, knowing that the aforementioned cannot intervene before the shortly after the homologation.
The employee T it has financial claim?
According to the law, in the event of conventional rupture, the employee must obligatorily perceive of his employer an allowance equal to that versed in the event of dismissal, which is calculated in the following way:
(1/5 * gross salary average * number of years of seniority) + (2/15 * gross salary average * number of years of seniority beyond 10 years)
The parties can be appropriate of an allowance of a higher amount.
The employee T it has right to the unemployment benefit?
The law provides expressly that in the event of conventional rupture of the work contract, the employee is entitled to the unemployment benefit, provided of course to fill the other requirements: to have worked at least nths during the last nths,…
Attention… In spite of the coming into effect of this law, the parties can always decide on a departure negotiated without implementing the rules relating to the conventional rupture. But, in this case, the employee is not entitled to the unemployment benefit.