Resignation: Tips and Tricks
An employee may terminate his contract of employment. The resignation is subject to some uses in his statement and in the starting conditions of the employee (notice, salary and benefits).
How to submit resignation?
There is no particular formality: a resignation can be written or oral. But certain work contracts or collective agreements envisage the sending of a letter, recommended or not.
It is strongly advised to resign in writing by means of a registered letter with acknowledgement of receipt to avoid any future dispute on the date of the breakdown and the starting point of the notice.
It is also imperative that the will to resign is clear (reasons stated in the letter), otherwise be subsequently reduced in dismissal, as in the case of unjustified absence.
Can one reconsider his resignation?
Yes, on condition that retracting as soon as possible. In principle, the agreement of the employer is necessary. Exceptionally, the courts agree that the resigning employee reverse its decision if it has clearly given on a whim (in a stormy discussion, for example).
If the resignation is ambiguous (it is the case when it is caused by the employer due to non-payment of wages or facts of harassment), judges tend to re-qualify the resignation in taking note of the breaking of the employment contract by the employee.
What can the employer do?
An employer may not refuse a resignation except in the case where it is prohibited by law (contract term for example). In the very rare case where the resignation reveals a real intent to harm on the part of the employee, it could give rise to prosecution and conviction of the employee to the employer for damages.
Furthermore, if the employee has received specific training, the contract may provide that employee who would leave the company before a certain time must repay the cost of training (training disclaimer clause).
Similarly, the employer cannot oblige an employee to resign. Indeed, it happens that an employer offers an employee to resign to avoid having to lie off. Even though it offers a voluntary departure, you should know that it will be perhaps less interesting than the severance pay (which a resigned is not entitled).
The employee will be struggling to get unemployment benefits and to enroll in a training course.
Is there a notice of resignation?
The employee resigned should take notice, except in the following cases:
- employee pregnant;
- employee wishing to raise her child after maternity leave or adoption;
- employee having taken leave for entrepreneurship;
- journalist resigning in accordance with the conscience clause.
Its duration depends on the contract of employment or collective agreements in use in the enterprise. In general:
- 1 month for workers, employees and technicians;
- 3 months for engineers and managers.
The employer may provide the employee of this notice. Then, he must pay him a allowance notice equal to the amount of the salary the employee would have received if he had completed the notice.
If the employee does not notice, it is he who must pay this compensation to his employer (most possibly damages).
If a contract of employment provides for a longer notice period as applicable by the collective agreement, the employee may avail themselves and require the employer to apply it.
What are the rights of an employee who resigns?
An employee who resigns does no compensation in respect of the breach of the contract, except:
- Compensatory leave allowance paid if he leaves the company before receiving all of his leave;
- Bonuses and gratuities that may be in use in the undertaking, provided that it is expected that the employee resigned before their payment could benefit from it;
- The compensatory allowance for notice if the employer has provided the employee to perform the latter.
The resigning employee has no entitlement to unemployment insurance benefits, unless his voluntary departure is regarded as legitimate.