Managing an employee's abandonment of post
The sudden absence of an employee, not justified within the legal time limits, or the failure to return to work following a stoppage, is likely to jeopardise the proper functioning and organisation of the company.
- What should the employer do?
The right decision needs to be made and the situation needs to be addressed quickly.
In general, in the event of illness or accident, the collective bargaining agreement provides for a 48-hour deadline for notifying the employer. However, this obligation is only necessary in order to obtain compensation from the company.
Instead, company rules provide for a period of between 24 hours and 48 hours to notify the employer of absence from work.
After this period, the employer is entitled to consider the absence as unjustified.
From that point on, and whatever the context, it is important to avoid any knee-jerk reactions. Even if the person concerned had a very important appointment or his absence had unfortunate consequences for the company, you must apply at there is a valid reason for it.
While the employer may be tempted to wait for the employee's return without reacting to his unjustified and prolonged absence, without paying him any remuneration since he is no longer effectively at the company's disposal, this position is not without danger even if in reality, behind this attitude lies a desire to be dismissed for abandoning his post and at least to receive the unemployment benefits not paid in the event of resignation.
The danger of failing to react to the employee's absence lies in the fact that it will be very difficult to dismiss the employee at a later date. The serious misconduct can only be invoked when the employer has noted the employee's absence in letters to which no reply has been received.
The employer's reactivity is therefore preferable to passivity, which could ultimately backfire.
- Pitfalls to avoid for the employer :
Do not consider the employee as resigning insofar as the resignation consists of a clear and unequivocal will to break the employment contract.
Obviously, there are situations, retained by the case law, which have been characterised as a clear desire of the employee to resign. For example, an employee who develops a professional activity in the same sector (but beware of the non-competition clause).
- So what is the right decision for the employer?
The employer must be able to justify the employee's failure to respond to the various letters he has received asking him to return to his job. Failing this, the employer may be deemed to have breached his contractual obligations and his duty of loyalty, and may be liable to dismissed for serious misconductIf no justification is provided and the company is clearly dysfunctional.
- The health-based absence trap
However, the employer should be very careful and all the more vigilant if the employee invokes an absence based on his state of health.
A fair balance must be struck between the needs of the company and the employee's state of health in order to avoid invalidating the dismissal on the grounds of health discrimination.
The many examples of case law show the extent to which judges assess disputes arising from this type of difficulty on a case-by-case basis, which places employers in such a state of legal uncertainty that a very scrupulous analysis of the situation is essential.
Because a good employee management To help you avoid disputes and legal action, Cécile ZAKINE can advise you on all matters relating to employees in the performance of their employment contract.
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