Can the employee and employer settle a dispute amicably?

Verified 01 June 2023 - Directorate for Legal and Administrative Information (Prime Minister)

In case of conflict between an employer and an employee, the labor council (CPH) is competent to settle the dispute.

In order to avoid referral to the HPC, the parties may decide to attempt to resolve the dispute at amicable.

What are the possibilities open to the parties? How is the friendly agreement formalized? What happens if the parties do not reach an agreement? Do you need a lawyer?

We present the various possibilities of a friendly agreement.

To resolve a conflict in thefriendly, the employer and the employee may use the following provisions:

The procedures differ depending on the choice of the parties.

Conventional Mediation

The conventional mediation allows you to adjust to amicable a dispute between an employee and his employer to avoid recourse to the labor council (CPH).

The assistance of a mediator is obligatory. The choice of this mediator must be made by mutual agreement between the employer and the employee.

The mediator must demonstrate the qualification required to deal with the dispute or demonstrate, as the case may be, training or experience appropriate to the practice of mediation.

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 so that he can accompany them towards an amicable resolution of the dispute.

The procedure is carried out in 4 stages:

  1. Presentation the facts of each party so that the mediator knows the origin of the conflict
  2. Search for interest and needs parties, through separate interviews as required
  3. Enumeration by the Ombudsman solutions envisaged by the parties
  4. 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.

Please note

the conciliator of justice may also be called upon to resolve the conflict.

Conventional mediation can have 2 outcomes:

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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 (with the agreement of the employee and the employer).

To obtain certification, the employee and the employer must enter the labor council (CPH).

However, the CPH may refuse to approve the agreement. However, it cannot change its content.

The approval of the agreement gives it enforceability. Thus, if one of the parties fails to comply with its commitments, the other party may request its enforcement.

Please note

the refusal of approval by the CPH deprives the agreement of the benefit 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.

The participatory procedure may succeed or fail.

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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 cover rights for which it is possible to negotiate.

The agreement may be approved by the Labor Council of Men (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 benefit 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 shall be established in the form of a contract, often called transactional protocolwritten 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, but 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 the completed transaction is not not valid, it may be canceled by the judge.

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 transaction may succeed or fail.

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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 in one of the following cases:

  • The conditions that created the transaction may cause it to be canceled
  • 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).