Social law. Can an employer today dismiss for misconduct an employee who has voluntarily resigned from his job, even though the law of December 21, 2022 and then the decree of April 17, 2023 have provided for a specific procedure leading to a simple presumption of resignation? A restriction, therefore, in contrast to the classic dismissal for misconduct, which should enable Unédic, the joint provider of unemployment insurance, to ultimately achieve 380 million euros in annual savings.
This development should also serve to prevent certain spontaneous departures, just as severance pay for fixed-term employment contracts should serve to encourage precarious employees to stay until the end.
Successful deterrence? Surprising figures: This law would have achieved its goal before it was implemented! The latter is from April 17th: the number of dismissals for serious or gross misconduct was 30% lower in the second quarter of 2023 than in the second quarter of 2022, according to the Labor Department survey released on October 31, 2023, which concluded: “This decline is related to the promulgation of the law that introduces the presumption of resignation upon leaving office. » Indeed, it was difficult to understand such a decline in misconduct a priori, regardless of the economic situation.
Complex situation
But according to Unédic, half of dismissals take place with the agreement of the employer, including 23% that he himself proposed: the line between arranged dismissal, accepted dismissal and conventional dismissal is therefore permeable. There is also no doubt that the exceptional success of the latter is due primarily to the unemployment benefits paid by Unédic: the way in which the contract is terminated often depends on whether one has access to these benefits or not.
However, on the business side, the situation today is doubly complicated. Of course, the special rules differ from the general rules. But Article R. 1237-13 seems to give her a free choice: “The employer who wants to assert the presumption of dismissal must send him a letter…” : up to the possibility of choosing the procedure of presumption of resignation for MA, who is deprived of his remuneration, but M. is dismissed for serious misconductMe B. So who will be able to benefit from this?
This is one of the arguments of the CGT, the FSU and the Sud, which disputed the legality of the decree before the Council of State, although the Constitutional Council considered that these provisions did not violate the principle of equality.
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