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When an unjustified employee absence can be considered a resignation

When an unjustified employee absence can be considered a resignation

Until recently, many employees who were unable to obtain a conventional termination with their employers and who wanted to leave their company without being deprived of their unemployment rights, abandoned their position, rather than resigning. In this case, which could not be assimilated to a resignation, the employer was forced to dismiss the employee for misconduct.

Law No. 2022-1598 of December 21st, 2022 has set a simple presumption of resignation in the event of abandonment of position. It entered into force on April 19th, 2023, after publication of its implementing decree of April 17th, 2023.

Thus, an employer must now note a resignation in the event of abandonment of position by its employee, provided however that it follows a strict procedure defined by law.

I – The legal definition of resignation

It must first be clarified that resignation is reserved for permanent contracts (CDI). An employee on a fixed-term contract (CDD) cannot resign, at the risk of being ordered to pay damages to the employer.

    1. Resignation must be distinguished from other methods of termination

In the following cases of termination, the procedure is different from the ones applicable in case of a resignation:

  • Termination of the trial period
  • Early termination of a fixed-term contract at the initiative of the employee
  • Voluntary retirement
  • Refusal by the employee of an offer of reinstatement after a dismissal pronounced in disregard of the protection of protected employees
  • Taking note of the termination of the contract by the employee
  • Request for judicial termination of the employment contract by the employee to the fault of the employer
  • Termination of his contract by the apprentice during the first 45 days of his apprenticeship.
    1. The desire to resign

Resignation is not presumed (except in case provided for by the law of December 21st, 2022). It effectively results from a clear and unequivocal manifestation of the employees’ desire to terminate their employment contract.

A resignation presupposes the manifestation of a conscious and definitive desire to terminate and not “inconsiderate” gestures or comments from the employee, due to an emotion, a mood swing, or an abnormal physical state. The thoughtless nature of the resignation will be particularly obvious if the employee retracts very quickly.

If an employer unilaterally modifies an employee’s work contract (which the person concerned has the right to refuse) or its working conditions (which is in principle binding on the employee, unless they are a staff representative), the simple fact that the employee refuses the decision and stops coming to work does not allow the employer to conclude that he/she has resigned.

    1. Resignation and defects of consent

Error, violence, or fraud can impact the validity of a resignation.

A resignation tainted by a lack of consent is void and is considered a dismissal without real and serious cause.

II – The legal presumption of resignation

    1. The scope of the presumption of resignation

From April 19th, 2023, companies must consider a permanent employee (CDI contract) who has voluntarily abandoned his or her position, to have resigned. The following conditions are however necessary:

  • The employee does not return to work;
  • The employer has previously given him/her formal notice to justify his/her absence and to return to his/her duties within a time limit which the employer has set;
  • The employer has informed the employee of the deadline.

From April 19th, 2023, the employer could sanction an employee who had abandoned his/her position, but could not consider him/ her to have resigned. For the judges, in a situation of this type, the employee had not clearly demonstrated his/her desire to resign when he/she did not come to work or persistently refused to return to work after an absence.

    1. The formal procedure to be followed by the employer

The employer must give the employee formal notice (obligatory by registered letter against signature or by hand-delivered letter against discharge) to justify his/her absence and to return to his/her position within a time limit the employer has set.

This period must be at least 15 days and runs from the date of presentation of the formal notice to the employee.

The employee can assert a legitimate reason to prevent the presumption of resignation. To do so, he/she must respond to the formal notice and justify himself/herself by relying on medical reasons, the exercise of the right of withdrawal in the event of serious and imminent danger, the exercise of the right to strike or to any other legal reason justifying his/her work absences.

The employee is presumed to have resigned at the expiration of the time limit set for him/her to act if he/she does not respond within the time limit to the given formal notice. No additional formalities are necessary to consider the resignation effective.

The employee presumed to have resigned must respect the legal, conventional, or established notice period in the profession.

III – The consequences of resignation

    1. Consequences for the employer

To the extent that the employee has not reacted to his/her employer’s formal notice, this means that he/she will not give the notice due in principle. The employer will therefore not have to pay him/her any compensation in this regard. The employer could even, possibly, claim compensation from the employees for non-performance of their contracts.

The employer must then make the usual documents available to the employee at the end of the contract, i.e.:

  • Work certificate
  • Receipt for balance of account (with the compensatory allowance due for untaken paid time off)
  • Job center certificate (Pôle Emploi).

These documents must be marked as “resignation”, in regard to the kind of termination. It is also in the employer’s best interest to send those to the employee by registered mail.

    1. Consequences for the employee

The employees will be deprived of their unemployment rights. However, there are cases where a resignation can give rise to unemployment, here are two examples:

  • When the employee moves to another region to join a partner.
  • When carrying out a resignation-conversion (resigning employees who leave their job to change profession, take over or create a business).

The employee can also contest the termination of his/her employment contract on the basis of the presumption of resignation. The employee can thus refer the matter to the Labor Court. This will be the case when the employee provides a reason for absence that can be considered legitimate, and which is not expressly provided for by the labor code. The employee’s action in court can also be justified if he/she has missed the deadline to respond to the employer, in case of an accident and was hospitalized, without being able to access his/her e-mails (it is obvious that in this case, the abandonment of post cannot be assimilated to a resignation).

Our dedicated human resources and employment law team is on hand to help you make sense of all this. So don’t hesitate to contact us!

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