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Resignation/démission -  legal, llegal or abusive

Posted by DOVV - Created: 6 years ago
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5 replies (Showing replies: 1 to 5)

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Posted by DOVV - 6 years ago

Hi, First, thanks loads for your answers... I feel that I need to share this not only to get it off my chest (I'm SO disgusted) but also as a warning to others to be careful.To answer coralie66's comment and fiona06's follow-up, the employer in not French... I can give a more detailed answer privately as it's rather particular and I would not like for the company to be recognized. And I agree with fiona66, it's not the nationality ... It's just the person... Ignorance is rather inacceptable for the head of a company responsible for its employees.Fiona66, you'raised some good points and I'll try to be more specific. In my resignation letter I was in fact very specific. I would be happy to send it to by email to you. According to what I've read on websites, a lettre de demission must be free of emotional issues and clearly state the intention to leave the company. My letter does neither. I did show it to my lawyer, and although she said that she does not specialise in droit de travail, just because one says something in writing does not render it fact, even if it is. In other words it will be my word against theirs. It seemed to her a valid letter. A CDD is not exclusively to replace someone. But, yes, in essence, i've replaced myself! Obviously I think I should have been taken back on a CDI, because that is what was promised. But I have no proof. Other than a colleague who was witness to all verbal exchanges between the boss & myself, but he'll be looking out for himself and couldn't be counted on to speak up if it ever comes to it. The CDD is for about 10 days more than 6 months. The trial period was indeed waived, but on the original contract was a phrase to the effect of "because employee is returning after resigning to attend a family problem". I had that taken out and replaced by "employee had already been employed at the company".I also believe that a CDI was not re-offered because the boss is worried that I'll need to go back one day to see my mother. This has effectively been curtailed by the CDD... I cannot accumulate enough paid leave to go for 2 weeks... If i'm re-offered another CDD, this will be repeated because the 1 st months leave will be paid at the end of the contract...and if I'm taken on. CDI. I'll have to wait a year before taking any.As for "abandon de poste", it has its pros & cons. I've been told that in my case, with a legitimate reason for absence, and documents to prove it (death certificate), I could have just walked back in. Not being paid afterards would have been a risk, but the company would have had to prove that it was really an "abandon". I don't know if all that's true, but it's French people that are saying this...Yes, Congé de Solidarité Familial is "de droit" and cannot be refused if asked the correct way. But when I spoke of this with the boss (I asked for 2 times 3 weeks, not to limit of 2X3 months), he said that it was unsuitable to my case... What would I do then, when there was no more congé ( and my father was still alive)? How could I then go help my mother or attend to his death when he did die? As I would have used up all my options... And also it was pointed out that this congé ends the third day following the death of the person you are helping... Was I then to be at my post the fourth day following the death? From the west coast USA? I'd leave my mother to deal with it alone? When I pointed out that that was at the discretion of the employer, she said "yes, isn't it". So knowing that I could not leave my mom in that painful situation, I simply did not make the formal request.I suppose what I find hard to deal with is the complete lack of humanity and understanding from a family enterprise where the boss said, says how we are all members of the family and would be treated as such. Psychologicaly, it would have been better to have understood from the beginning that business is business and your keep your personal problems to yourself. Thanks again for any ideas, comments and support.

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Posted by fiona06 - 6 years ago

@Coralie66
I honesty don't think that it's got anything to do with the nationality of the employer. I have seen (and have been told of) this kind of misbehaviour in all sorts of companies, whether French or not, whether big or small. Some do it on purpose, some just because they do not know the French law which is complicated and getting every day more complicated as new laws pile up.

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Posted by coralie66 - 6 years ago

No need to ask what nationality the employer was, regrettably it's all too obvious. What a horrible story and so typical. I hope now you can finally have time to get over what's happened instead of having to waste endless energy on dealing with this sort of thing and this sort of typical little "jeu de pouvoir" so common out here...little but with significant consequences unfortunately. Best of luck for the future.

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Posted by fiona06 - 6 years ago

The employer cannot refuse a request for 'Congé de Solidarité Familiale' provided it's been properly done (certified letter with clear evidence of the situation backed up by letters from the doctors, etc...). The "Congé" would have actually started on the day the employer would have received your request.
Now you say that when you resigned, you wrote a letter explaining how you were forced to resign. This letter alone (depending on its content, and how detalled it is) may be enough to prove that your employer forced you to resign. Bring this letter to a lawyer (first visit is usually free ... some expensive lawyers would charge about 150 € per half hour. Call their office and ask their rate for a first visit.).
The other strange thing is that you have been hired again but under a CDD... A CDD contract is only used to replace another employee either on a sick leave, on vacation, on maternity leave, etc... Who exactly are you replacing ? Yourself ? Are you still doing the same job ? I think he should have taken you back under a CDI with no trial period (since you already worked for him, he knows how you work, so cannot submit you to a trial period... people don't know that but if you are hired after an internship or any other form of work, you cannot be submitted to a trial period).
>> Will the pole emploi just accept that I resigned to be re-hired?They won't have a problem with that. Your main problem is that in case you end up without a job (end of your CDD), Pole Emploi will not indemnify you if you haven't worked at least 91 days (3 months + 1 day) since your last resignation. What's the duration of your CDD contract? (BTW, working at McDonals to get your 91 days is a workable solution).
>> I have since discovered that I should have just gone, waited for a lettre reccomandé demanding an explanationIf you had been gone, they had no legal obligation to send a "lettre recommandé" and ask for an explanation. What you describe is called "abandon de poste" and in this situation you are the one in trouble, not the employer... You'd be the one liable for the end of the contract. They could have stopped paying you without issuing any of the end of contract paperwork. And you could make no claim against them.






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Posted by DOVV - 6 years ago

Thanks to peper and others who have answered by email.I have gone back and was taken back on on a CDD. Needless to say, I'm looking for another post! I have since discovered that I should have just gone, waited for a lettre reccomandé demanding an explanation, answered that letter and then go back as if never gone, instead of being honest and gullible and reisigning! As christopherL said in another thread, wealthy and/or savvy employers take advantage of the average person, especially foreigners, being unfamiliar with French law. Any other comments welcome with thanks.