Cecile Zakine gives her point of view on the abandonment of post and its legal implications in labour law in the Maritime Alps at the Grasse Bar
Abandonment of post
Abandonment of post: the procedure to follow
Maître Cécile Zakine can help you on a daily basis for many tasks in the Antibes, Sophia-Antipolis and Alpes Maritimes region.
If an employee fails to report to work without a legitimate reason and without permission and without writing to his employer within 48 hours of his absence, this is considered to be an abandonment of post, which may lead to dismissal for serious misconduct.
Dismissal for gross misconduct is justified by the fact that it is a breach of contractual obligations.
This choice has implications for the applicable procedure and system of proof. Indeed, in the field of real and serious cause, the burden of proof is shared insofar as the judge decides on the basis of the elements produced by the parties. And doubt benefits the employee (C. trav. art. L. 1265-1). Whereas in the case of disciplinary dismissal, the burden of proof of the seriousness of the acts of which the employee is accused rests entirely on the employer (C. trav. art. L. 1333-1).
If the employer chooses to dismiss for serious misconduct and the matter is referred to the industrial tribunal, it may be requalified as a dismissal without real and serious cause by the courts. This is the case in particular when the employer fails to implement the dismissal procedure promptly.
What about the procedure for abandoning a post following sick leave?
Dismissal for serious misconduct is justified when an employee, after having provided work stoppages for several months, had stopped sending them and did not respond to the employer's requests to justify his absence since, if it was a resignation, it should have resulted from the employee's clear and unequivocal expression of his intention to terminate his contract
Cécile ZAKINE assists employers in all matters relating to serious misconduct
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Frequently asked questions
What is abandonment of post in labor law?
This is the fact for an employee to stop reporting to work without legitimate reason and without authorization. The employer may then initiate dismissal proceedings for gross misconduct.
How long does it take to be dismissed for abandonment of position?
The employer must first put the employee on formal notice to justify their absence. Without a response within a reasonable time (often 48 hours), they can summon for a preliminary interview. Dismissal can occur within 2 to 3 weeks.
Can I be compensated if I resign after abandoning my post?
No, abandonment of post is serious misconduct that deprives you of notice and severance pay. It is better to negotiate a mutual termination agreement with Ms. Zakine.
What to do if my employer fires me for abandonment of post while I was sick?
You must provide a medical certificate within 48 hours. If the absence is justified, the dismissal is wrongful. Me Zakine helps you contest it before the labor court.
What are the risks of abandonment of position for the employee?
Risk of dismissal for gross misconduct, without severance pay or notice. Additionally, Pôle emploi may apply a deferral of benefits. Me Zakine advises you on alternatives.
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About Cécile Zakine
Lawyer in Antibes, registered with the Grasse Bar. Intervenes throughout France. Labour law, Litigation at work. Real estate litigation and co-ownership law. Construction problems (VEFA,..)Fast, motivated and committed response. Do not hesitate to contact the lawyer in Antibes: Maitre Zakine. or to make an appointment online for a consultation.
Possible consultation 45€/ 30 min by phone for a first consultation
