Can the employee and employer settle a dispute amicably?
Verified 12 December 2024 - Directorate for Legal and Administrative Information (Prime Minister)
In case of conflict between an employer and an employee, the labor council of men (CPH) can be consulted to settle the dispute. In order to avoid recourse to the CPH, the parties may decide to resolve the dispute at amicable. They can choose the conventional mediation, the participatory procedure or a transaction. The procedures differ depending on the choice of the parties. We're doing an update on the regulations.
Conventional Mediation
Initiateby the parties, treaty mediation enables a dispute to be settled at amicable. This process avoids the need for the employee and his employer to appeal to the labor council (CPH).
In order to settle this dispute, the assistance of a mediator is obligatory. The choice of this mediator must be made by mutual agreement between the employer and the employee.
This mediator must justify the qualification required to deal with the conflict or to justify, as the case may be, a training or experience appropriate to the practice of mediation. It must be independent, neutral and impartial.
Mediation shall take place in the compliance with conditions fixed directly by the parts and the mediator.
FYI
During mediation, the employee and the employer may to be made assist of a lawyer. The latter advises them and accompanies them towards an amicable resolution of the dispute.
Mediators are included in a list which is drawn up every three years.
This list is searchable in the single reception services for litigants of appeal course, courts of law, labor boards and commercial courts.
It can also be found in the Houses of justice and law and in the access points or relays to the right.
Please note
The conciliator of justice may also be called upon to resolve the conflict.
The procedure for conventional mediation takes place in 4 steps :
- Presentation the facts of each party so that the mediator knows the origin of the conflict
- Search for interest and needs parties, through separate interviews as required
- Enumeration by the Ombudsman solutions envisaged by the parties
- Production of the memorandum of understanding (or transactional agreement) signed by the parties.
The length of the mediation depends on the will of the parties. They have to set a calendar.
One or more mediation sessions may be required to reach an agreement.
The cost of conventional mediation, set by freely by the Ombudsman, is distributed in equal parts by the parties.
Where recourse is had to lawyers, the fees are also shared.
Conventional mediation can have two outcomes: agreement and no agreement.
The parties shall reach an agreement
If the employee and the employer reach to settle their dispute, a written agreement is concluded between the parties.
The agreement can be approved by the labor council (CPH) with the agreement of the employee and the employer.
In order to obtain approval, the employee and the employer must apply to the labor council.
However, the CPH may refuse to approve the agreement. However, it cannot change its content.
The approval of the agreement gives it enforceability. This means that if one party fails to comply with its commitments, the other party may seek the application of the agreement.
Please note
The refusal of approval by the CPH deprives the agreement of the enforceability, but he don't cancel the agreement.
There is no agreement between the parties
If mediation does not does not allow to resolve the dispute, the employee or employer can then seize the labor council (CPH).
The prud'homale procedure shall apply in usual conditions (conciliation and guidance phase and, if necessary, judgment of the case).
Participatory procedure
The participatory procedure allows you to adjust to amicable a dispute between an employer and his employee to avoid recourse to the labor council (CPH).
Each part is obligatorily assisted by a lawyer.
The employer and the employee, assisted by their lawyers , conclude a convention of participatory procedure.
This Convention written set the duration during which the parties undertake to find a solution friendly to the dispute.
She clarifies the subject matter of the dispute, the documents and information necessary for its resolution and the rules for their exchange.
The cost varies depending on the fees of lawyers.
Fees are shared between the parties.
The participatory procedure may succeed or fail.
The parties shall reach an agreement
Where the participatory procedure allows the employee and the employer to to settle the dispute, they shall conclude a agreement with the assistance of their lawyers respectively.
This agreement summary the matters resolved in the course of that procedure.
In order to be valid, the agreement must determine the points of law on which the parties wish to limit the debate (remuneration, overtime, for example)
The agreement may be approved by the labor council (CPH) with the agreement of the employee and the employer. In order to obtain approval, the CPH must be entered. However, the CPH may refuse to approve the agreement. However, it cannot change its content.
The approval of the agreement gives it enforceability. This means that if one of the parties fails to comply with its commitments, the other party may ask for them enforcement.
Please note
The refusal of approval by the CPH deprives the agreement of the enforceability, but he don't cancel the agreement.
There is no agreement between the parties
If the participatory procedure does not does not allow to resolve the dispute, the employee or employer can then seize the Labor Council (CPH).
The prud'homale procedure shall apply in usual conditions (conciliation and guidance phase and, if necessary, judgment of the case).
Transaction
Transaction is a agreement between an employee and his employer who fine-minded to a dispute without waiting for a judgment. It involves reciprocal concessions.
It shall be established in the form of a contract, often called transactional protocol, drafted in writing and signed by the employer and the employee.
The assistance of the parties (by a lawyer, in particular) during the negotiation optional, but it is preferable to ensure the validity of the signed transaction.
The contents of the transaction are freely negotiated by the employee and the employer. However, it must nevertheless meet the following conditions:
- Respect the general terms and conditions for the validity of contracts (lawful cause, free and informed consent of the parties, capacity to contract)
- Show a conflict between the parties
- Plan and mention the concessions reciprocal (e.g. payment of compensation for the employee's undertaking not to refer the matter to the labor board).
If the parties are represented by counsel, counsel shall intervene during the negotiation, then on the occasion of the writing transaction protocol.
The transaction can be completed before a procedure judicial (labor or appeal) or during this procedure.
If one of the parties considers that the transaction concluded is not valid, it may apply to the court for its decision cancelation.
Warning
If the conflict concerns the breach of contract of employment, the transaction cannot be completed only after the date of termination of the contract.
The cost varies depending on the fees of lawyers, if the parties decide to use it.
Fees are shared between the parties.
The transaction may succeed or fail.
The parties shall reach an agreement
When the transaction is validly in conclusion, the employer and the employee cannot no more challenging the conditions of performance of the contract or the conditions under which it is terminated.
After signing the transaction, it it's no longer possible to contest its contents in court.
However, a recourse to the Labor Council (CPH) remains possible if the conditions that created the transaction can cause it to be canceled. It is also possible if the employee and/or employer do not comply with the obligations laid down in the transaction.
The employer and the employee may apply to the CPH d'certify the transaction.
The CPH cannot modify the contents of the transaction. He can refuse to approve the transaction if he considers that the agreement signed between the employer and the employee disadvantage one of the 2 parts.
Example :
The CPH may cancel the transaction if the transaction provides that a dismissed employee will receive less than the amount of severance pay to which he or she may be entitled.
The approval of the transaction gives it enforceability. Thus, if one of the parties fails to comply with its commitments, the other party may request its enforcement.
There is no agreement between the parties
If the transaction does not allow to resolve the dispute, the employer or the employee may then refer the matter to the labor council (CPH).
The prud'homale procedure shall apply under the usual conditions (conciliation and guidance phase and, if necessary, judgment of the case).
Conventional mediation and participatory procedure (general principles), transaction (certification)
Transaction (validity conditions)
Transaction (consequences)