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The importance of contract termination
Please note that the signing of a contractual termination between the employee and the employer does not interrupt the two-month limitation period for acts considered to be at fault by the employer.
Indeed, the latter has a period of two months from the discovery of the facts deemed faulty to initiate the disciplinary dismissal procedure. This means that the employer must summon the employee to a preliminary interview within two months.
If the employer concludes a contractual dismissal with the employee without having initiated the disciplinary dismissal procedure and the conventional dismissal does not succeed, then the employer can only initiate a disciplinary procedure if he is still within the two months that began to run knowing the facts.
Thus, an employee who withdraws at the end of the two-month period could no longer be subject to disciplinary proceedings for these facts.
This is the solution adopted by the social chamber of the Court of Cassation in the judgment of March 3, 2015 n°13-23.348:
“But given that the signature by the parties of a contractual breach does not constitute an act interrupting the prescription provided for by Article L. 1332-4 of the Labor Code; And whereas the Court of Appeal, which ruled that the employer did not justify not having been aware of the alleged absences, the last of which dated September 11, 2010, only in the two months preceding the summons, ie September 16 2010, at the preliminary interview, deduces exactly the prescription of the faulty facts “
Two-month prescription and disciplinary procedure
In this judgement, the employer accused the employee of unjustified absences but he had not summoned the employee to a preliminary interview. The parties had signed a severance agreement, then the employee had retracted and the employer had then launched the disciplinary procedure by summoning him to a preliminary interview with a view to his dismissal for unjustified absences.
The employer lost its case because more than two months had passed since the discovery of the wrongful facts.
The faults were prescribed and the dismissal was then without real and serious cause.
The principle is as follows: the signature by the parties of a contractual breach does not interrupt the two-month limitation period applicable to the disciplinary procedure.