Certification pole employment: mandatory regardless of the reason for rupture
In a decision of March 15, 2017 , the Court of Cassation recalls that the employer must issue to the employee, at the time of expiration or termination of the employment contract, certificates and justifications that allow him to exercise his rights to services mentioned in Article L. 5421-2 of the Labor Code and transmit without delay the same certificates to Pôle emploi.
The facts that gave rise to this case were as follows:
The employee had resigned and the employer had not given her a POLE EMPLOI certificate on the grounds that there was no need to do so since, in the event of resignation, the employee was not entitled to unemployment insurance.
The Court of Appeal Chambéry had followed the employer in his reasoning.
The Court of Cassation is not of this opinion and specifies, referring to article R.1234-9 of the Labor Code , that the obligation to hand over the POLE EMPLOI certificate to the employee applies in all cases. expiration or termination of the employment contract.
If the employer does not do so, he is liable to a fine of 1500 euros ( articles R1238-7 of the Labor Code and 131-13 of the Penal Code ) and may be ordered to pay damages to the employee if he demonstrates that he has been prejudiced by this non-delivery.
Indeed, without a POLE EMPLOYMENT certificate, the employee can not assert his rights to unemployment insurance and a late delivery of the certificate results in a delay in the payment of benefits.
The interest of this decision is to remind that the employer can not judge the opportunity or not to issue a certificate. It is up to POLE EMPLOI to assess whether or not the employee can benefit from unemployment benefits.
However, certain resignations considered legitimate give rise to unemployment, for example resignation to follow a spouse who changes his place of residence to pursue a new job (source: Implementing Agreement No. 14 of 14 May 2014 , see also article published on the Practical Blog of Labor Law devoted to legitimate resignations ).
It is also planned, in the social program of the new President, Emmanuel MACRON, to open the right to unemployment insurance to employees who resign every five years.
Finally, let us recall a situation that often poses a problem: the act of breaking the contract of employment at the initiative of the employee.
In this situation, the employee breaks the employment contract by invoking faults of the employer (non payment of wages for example); very often, the employer considers it to be a resignation. However, he must not be a judge of the grievances invoked against him and requalify on his own the break resignation. The employer must draw up the documents of end of contract and mention on the certificate of employment the reason invoked by the employee, namely ” taking action by the employee “. It is up to the judge, possibly seized by the employee or by the employer to judge whether the break must be analyzed as an act of wrongdoing by the employer or a resignation ( see the article published on the Practical blog of the labor law on this subject ).