It is common for employers to claim job abandonment; however, from a legal point of view, this is not always the case in reality. For example, if the employee does not show up for work after their holidays, the employer is not entitled to immediately claim a job abandonment.
“In the event that the worker does not show up for work or abandons their job abruptly without just cause, the employer is entitled to compensation equal to a quarter of the monthly wages; they are also entitled to compensation for any additional damage” (Art. 337d CO).
What are the grounds?
The application of Art. 337d CO implies that the worker, in a conscious, intentional and final manner, refuses to continue to perform work as provided for in their contract. Art. 337d CO requires a conscious, intentional(deliberate), and finalrefusal to continue with the performance of assigned work. These three requirements are cumulative.
Therefore, in order to qualify as job abandonment by the worker within the meaning of the above provision, the decision of the employee to abandon their position must be straightforward, final and unambiguous. This is the case when the refusal is the result of an explicit and unequivocal declaration by the worker.
Two types of job abandonment
The worker’s decision to quit their job must be straightforward and unambiguous. There are two types of job abandonment:
Straightforward and unambiguous job abandonment
2.Job abandonment resulting from decisive actions
If the unjustified absence is of short duration, i.e. a few days, as a general principle, it cannot be inferred that the worker has decided to give up their job; however, should the absence last several months, it can generally be considered that there is actually a job abandonment. When in doubt, the analysis must consider all the facts and information available to the employer.
According to the Federal Court, if the absence is of short duration, this does not represent a termination of the employment relationship, but a failure which, subject to any warning, may justify the immediate termination. Conversely, an absence of several months must be considered as an intentional and final refusal to continue with the working relationship, even if, subsequently, the worker should unexpectedly offer to resume their office. In this case, the duration of the absence is sufficient in itself to assume that the worker has demonstrated their willingness to abandon their job.
However, the employer may not claim job abandonment when they know or suspect that the worker has a health problem, even if they have not received any contact from the person concerned for some time. The employer must ensure that the worker who abruptly leaves their job expresses their conscious, deliberate and final desire to terminate their contract. If a worker leaves the company in a hurry as a result of a strong emotional response following an incident, such as an altercation with their supervisor, their willingness to immediately terminate their contract should not be deemed as final, even if what they said or did may be understood in that sense.
3. Medical certificate and non-recognition of incapacity for work by the health insurance for loss of earnings: a job abandonment?
It is up to the employee to provide proof of their incapacity for work. If the employee disputes the insurer’s position, they are entitled to launch an action against the loss of earnings insurer; this is a right they must enforce in order to assert their rights. The employer cannot assume job abandonment. In this case, they are not expressing their will not to resume their activity, but they consider that they are not capable of doing so. On the other hand, the employer could, by rallying behind the position of the insurer, refuse to pay their wages. Therefore, in this case, it appears to us that job abandonment cannot be claimed, since a final decision has not been communicated.
Should the employment contract be terminated?
Job abandonment implies termination with immediate effect by the employee. Therefore, the employer should not have to terminate the contract and an ordinary or immediate dismissal is unnecessary.
How to proceed?
It is up to the employer to prove that there has been job abandonment. In case of doubt, the employer should give the employee formal notice to return to work on a specific date or to justify their absence by providing evidence, for example, of their incapacity for work.
What about loss and compensation?
If the worker does not show up for work or abandons their job abruptly without just cause, the law provides for the following rights of the employer:
- the right to one-off compensation equal to a maximum of a quarter of the monthly salary:
the worker may dispute the merits of the compensation claimed by proving that the employer has suffered less damage or has not suffered any damage.
- the right to compensation for additional damage (Art. 337d CO).
It is up to the employer to prove the additional damage claimed.
How is the quantum of one-off compensation determined?
The determining wage for calculating one-off compensation is equal to a quarter of the monthly wages, which includes the basic wage, any end-of-year additional wages as well as any other benefits resulting from the employment contract (profit share, bonus, compensation for lost wages in kind, etc.).
How is compensation for loss obtained?
There are two possibilities for obtaining compensation for the losses:
- By set-off against the amounts still owed to the employee;
- By starting proceedings or legal action if the amounts still owed to the worker are not sufficient.
What is the deadline for claiming compensation for loss?
If the employer cannot offset the compensation, they must start proceedings or take legal action within 30 days of the no-show or job abandonment; failing to do so, their entitlement may lapse.
No-show absence or job abandonment is subject to specific legal requirements and rules which must be complied with.
This content was drafted by the law firm CJE Avocats Conseillers d’Entreprises.