An employee resigned on 20th July 2009. The person was excused from serving the notice period, which was however remunerated. The compensating indemnity for the non-competition clause was not paid on the date of the person’s effective departure from the firm, but at the end of the notice period.
On 29th August 2009 (during the unserved notice period) the person concerned took up a new activity in a competing company. The person’s previous employer referred a complaint to the industrial tribunal for breach of the employee’s noncompetition clause.
The employee argued that the non-competition clause was not binding during the notice period since the employer had not paid the financial consideration during said period.
The Court validated this reasoning. Conclusion:
- an employee who fails to respect the noncompetition clause during the notice period, but who has not received the financial consideration on the date of effective departure from the firm cannot be justified in considering that there was no breach of the noncompetition clause.
To reiterate, the Cour de cassation recently confirmed that the employee may claim payment of the compensating indemnity for the noncompetition clause on effective departure from the company (Cass. soc., 21st January 2015, n°13- 24.471 : cf. Newsletter March 2015)
The employer must therefore anticipate and be careful of this.