In the event of a dispute arising from the termination of the employment contract, the employer and the employee may agree to sign a transaction thereby waiving any subsequent dispute before the Labor Council.
However, the question arises as to whether the signing of a transaction prevents any complaint from the employee, in particular relating to a non-competition clause provided for in the employment contract.
In fact, until then constant case law, the contractual clauses intended to be applied after the termination of the employment contract were not, unless expressly provided otherwise, affected by the transaction between the parties to settle the consequences of an employment contract. dismissal (Cass. Soc. January 18, 2012, n ° 10-14.974).
The Cour de cassation deduced from this that, since the transaction did not include any provision referring to the non-competition clause, this did not fall within the scope of the transaction (Cass. Soc. 1 March 2000, n ° 97-43.471).
Despite the conclusion of a transaction, the employer could therefore, since he had not released the employee from his non-competition obligation, be ordered to pay a sum as compensation under the clause of non-competition (Cass. Soc. January 24, 2007, n ° 05-43.868).
According to a judgment on February 17, 2021, the Court of Cassation appears to be softening its position.
In this case, an employee had been the subject of a dismissal, and had, after the termination of her employment contract, signed a transactional memorandum of understanding with her employer.
The latter did not include any reference to the fate of the non-competition obligation which appeared in the employment contract concluded between the parties.
The employee therefore seized the Labor Council and then the Court of Appeal with a request for an order against her employer to pay her the sums due in respect of the pecuniary consideration for this non-competition obligation.
To grant this request, the Court of Appeal, relying on the aforementioned judgments of the Court of Cassation, held that the employer did not justify having expressly lifted the non-competition clause provided for in the employment contract, and that the disputed transaction did not include any mention from which it would follow that the parties to the protocol intended to settle the question of the non-competition indemnity owed to the employee.
In this context, the trial judges argued that the employer could not rely on the authority of res judicata attaching to the transactional protocol concluded to oppose the demand for payment made by the employee.
However, the judgment is overturned by visa articles 2044 and 2052 of the Civil Code, in their wording prior to the law of November 18, 2016, and articles 2048 and 2049 of the same code.
According to the Court of Cassation, “it follows from these texts that the reciprocal obligations of the parties under a non-competition clause are included in the object of the transaction by which these parties declare that they have fulfilled all their rights, put end any dispute arising or to be born and renounce any action relating to the execution or termination of the employment contract ”.
The High Jurisdiction therefore seems to have gone back on its previous case-law, and seems to admit that, even in the absence of any mention relating to the non-competition clause concluded between the parties, the transactional memorandum of understanding concluded between the parties may include the obligations arising from it.
However, the latter must expressly mention that it is intended to settle any dispute between the parties.
In this case, the Cour de cassation takes care to emphasize that “under the terms of the transaction, the parties recognized that their reciprocal concessions were made on a transactional, fixed and final basis, in accordance with the provisions of articles 2044 et seq. of the Civil Code, and in particular of Article 2052 of this Code, in order to fulfill them with all their rights and to put an end to any dispute arising or to arise from legal or factual relations that may have existed between them and declared , subject to the perfect execution of the agreement, be fully fulfilled of their respective rights and reciprocally waive any action to claim any sum whatsoever ”
