This is one of the sensitive measures of the unemployment reform law wanted by the Government and approved by Parliament: the assimilation of abandonment of office to resignation.
Remember that until this adoption, workers who abandoned their post could claim in most cases (gross negligence excluded) unemployment benefits, this abandonment giving rise to dismissal for “bad conduct”.
Pursuant to article L. 5422-1 of the Labor Code, the provisions may have the effect of depriving the worker concerned of his right to allowance.
Justification and formal notice
This measure was strongly contested by the opposition, which seized the Constitutional Council. The latter, however, validated the entire law and this point in particular, highlighting the exceptions and the means of challenge.
“First of all, the contested provisions apply only in the event that the worker has voluntarily abandoned his position (if) it is justified by a legitimate reason, such as medical reasons, the exercise of the right to strike, the exercise of the right of withdrawal , the refusal of the worker to comply with an instruction contrary to the regulations or his refusal to unilaterally modify an essential element of the employment contract”, write the Wise Men.
That is, the employee who leaves his position must justify his absence or return to his position within a specified period.
“On the other hand, the worker may only be considered to have resigned after his employer has given him formal notice to justify such reason and for him to return to his post within a specified period, which may not be less than a minimum set by decree. in the Council of State.
Translation, it cannot be presumed that the worker resigned before having been formally notified by his employer by certified letter with acknowledgment of receipt or by hand-delivered letter against the dismissal. Only then does the law apply.
The Prud’hommes will have a month to decide
Once this period mentioned in the formal notice has elapsed, the worker who has not justified his absence or has returned to his job will be considered to have resigned.
“Secondly, the presumption of resignation established by the challenged provisions is a simple presumption, which therefore can be annulled by the worker who intends to challenge the termination of his employment contract. The labor court that hears such a dispute then decides on the merits, without prior conciliation, within a month from its referral”, continues the Council.
Indeed, the legislator has provided that this presumption can be canceled if the abandonment of the position was caused by faults of the employer (such as harassment). The interesting point is the period of one month, a particularly short period in labor law.
Source: BFM TV
