Rupture conventionnelle: the employee's fraud (dol) triggers nullity
Cass. soc., 19 June 2024, n° 23-10.817
The employee's deliberate concealment of information he knows to be decisive for the employer, aimed at obtaining its consent to the rupture conventionnelle, renders that termination void!
A rare illustration of a defect in consent (vice du consentement) affecting the "stronger party" to the employment contract (Cass. soc., 19 June 2024, n° 23-10.817).
The Toulouse Court of Appeal — followed by the French Supreme Court — noted in particular that:
the employee had expressed a wish for a career change "into management";
it emerged from material found on the employee's work computer that he had concealed a plan to set up a business directly competing with the employer's, started with two other employees of the group before the rupture conventionnelle was signed;
a text message exchange after the termination of the employment contract shows that the employee was well aware of how decisive this concealment was for the employer, who "trusted him" and therefore made its decision solely in light of the wish for a career change put forward by the employee.
The French Supreme Court also holds that the nullity of the rupture conventionnelle for a defect in consent takes effect as a resignation. In practice, the employee is ordered to repay the specific mutual termination indemnity (indemnité spécifique de rupture conventionnelle) wrongly received, as well as pay in lieu of notice.
Of note: in a recent unpublished ruling (Cass. soc., 11 May 2022, n° 20-15.909) with a similar fact pattern (the employee had invoked a career change into nautical tourism, obtained a rupture conventionnelle, then joined a competitor as sales director), the French Supreme Court had ruled the other way, holding that the Saint-Denis de la Réunion Court of Appeal had not found that the career-change plan presented by the employee to his employer had been decisive to his consent.