In New Caledonia, a French overseas territory, the French Labour Code governs notice periods during employment termination. The Code stipulates minimum notice periods for both employers and employees initiating termination, with variations based on employee seniority.

Minimum Notice Periods

For employees with less than six months of service, no minimum notice period is required. For those with between six months and less than one year of service, a one month notice is required. For employees with more than one year of service, the notice period increases progressively with seniority, following a specific calculation outlined in the Code.

Employers are generally required to provide a notice period that mirrors that required of employees based on seniority. They must also provide written notification to the employee outlining the reason for termination and the effective date.

For instance, an employee with three years of service who is laid off by their employer must be given a minimum of three months' notice by both the employer and the employee.

Exceptions to Minimum Notice Periods

There are exceptions to these minimum notice periods, typically reserved for situations of serious misconduct by either party. If an employer can demonstrate serious misconduct by an employee, they may dismiss the employee without notice. Conversely, in cases of serious misconduct by the employer, such as harassment or unsafe working conditions, the employee may resign without notice and be entitled to compensation.

In New Caledonia, employees are entitled to severance pay under certain conditions of termination. The legal framework for severance pay is outlined in the French Labour Code.

Eligibility for Severance Pay

Employees must have at least eight months of continuous service with the same employer to qualify for severance pay. Severance pay is generally required in cases of dismissal for economic reasons, redundancy, termination for personal reasons (excluding serious misconduct), or retirement. However, employees dismissed for serious misconduct are not eligible for severance pay.

Calculation of Severance Pay

The calculation of severance pay is based on both the employee's salary and their length of service. The base salary used for calculating severance pay typically includes the average gross monthly salary earned during the 12 months preceding termination. The severance pay entitlement increases progressively with the employee's years of service, according to the following formula:

• 1/5 of a month's salary per year of service up to 10 years.
• 1/3 of a month's salary per year of service beyond 10 years.

Additional Payment for Employees over 50

Employees over the age of 50 with at least 20 years of service in the same company receive an additional severance payment of 20% of the calculated severance pay amount.

For example, an employee with five years of service and an average monthly salary of €3,000 is dismissed due to economic reasons. They would be entitled to the following severance pay: (1/5 x €3,000 x 5) = €3,000 in standard severance payment.

It's important to note that the severance pay entitlement is a minimum legal requirement. Specific collective agreements or employment contracts may offer more favorable terms for employees.

The termination of an employment contract in New Caledonia follows a regulated process to ensure the rights of both employers and employees are protected. This process is infused with relevant legal references from the French Labour Code.

Types of Termination

• Termination by mutual agreement: Employer and employee mutually agree to terminate the contract. This process requires approval from the labor authorities.
• Resignation: The employee voluntarily ends the employment contract.
• Dismissal: The employer involuntarily terminates the employment contract. It can be due to personal reasons related to the employee's performance, conduct, or aptitude or economic reasons based on a company's financial difficulties, restructuring, or technological changes.

Dismissal Procedures

Dismissals for personal or economic reasons require adherence to specific procedures:

1. Pre-dismissal meeting: The employer must invite the employee to a pre-dismissal meeting and state the reasons for the intended dismissal. The employee has the right to be assisted by a representative.
2. Notification Letter: Following the meeting, the employer must send a formal dismissal letter outlining the reasons and the effective termination date.

Contesting a Dismissal

Employees may disagree and contest a dismissal if they consider it unjustified or if proper procedures were not followed. They can file a claim with the Labour Tribunal. It is strongly advised to consult a labor law professional in New Caledonia for individualized guidance on specific termination processes, regulations, and dispute resolution.