Abandonment of employment
Qualification and Criteria of Abandonment of Job
When a worker fails to report to his or her job, or refuses without just cause to return to work, there is an abandonment of job. Abandonment of work is defined as the conscious, intentional, definitive refusal, without just cause, of the employee to perform his workload.
Abandonment of work has legal and practical implications for both the employer and the employee. This concept must be handled with care.
Altercation with the employer
When an employee abruptly leaves the company's premises following an altercation, the employer cannot immediately deduce that the employee abandoned his or her job. He must put the employee's behaviour into perspective and ask him to return to work if there is any doubt as to whether he has abandoned his job. The employer can only consider the employee's decision as final if the employee does not return to work after having been given notice.
The Federal Court (TF) has ruled that an employee who returns his keys and leaves the company premises after an altercation with his manager does not necessarily show an irrevocable intention to quit his job.
The employer must examine in each case the particular circumstances of the case and interpret the employee's intention objectively and in good faith.
With the illness, the temptation is to spend some quality time with the family. The risks are great if the family is abroad.
When can abandonment of post be retained?
Lea fell ill in May. She provided her employer with a medical certificate and did not show up for work. Her parents suggested that she come home to France to rest. Lea jumped at the chance. When she became aware of the situation, her health insurance company decided not to pay her any more benefits. Indeed, it considered that, since she had gone abroad, she was also able to work.
Lea's employer then wondered if it was his responsibility to cover his employee's salary during this absence. The employer's first reflex is to invoke abandonment of post in the sense of article 337d of the Code of Obligations.
When such a case is established, the employer is no longer obliged to pay the salary. If the employee no longer reports to work, the employment contract is terminated immediately and without cause.
An employee is enjoying his vacation and would like to extend it a little. At the end of the vacation agreed upon with his employer, an employee decides to extend it unilaterally, does not show up for work and continues to enjoy himself for a few days. Does this situation constitute an abandonment of post or an unjustified absence? How should the employer react?