Since Tuesday, April 18, the voluntary abandonment of the position by an employee has been assimilated to a resignation. This is one of the measures of the law “on emergency measures related to the functioning of the labor market with a view to full employment” desired by the government. This measure was validated by the Constitutional Council. The implementing decree has been published, so the law officially enters into force.
“The worker who has voluntarily abandoned his position and does not return to work after having been given formal notice to justify his absence and to resume his position, by certified letter or by letter delivered by hand against receipt, within the term set by the employer, it is presumed that he has resigned at the end of this period,” the new law stipulates.
Abolition of unemployment benefits
It is a significant change. Until now, workers who abandoned their post could claim unemployment benefits in most cases (gross negligence excluded), this abandonment giving rise to dismissal due to “fault”. Henceforth, assimilated to a resignation, the abandonment of the position will not give access to any assignment.
according to one DARES study (Department of Animation, Research, Studies and Statistics) published in February 2023, 70% of dismissals for serious misconduct would be due to job abandonment.
15 days to return to his position
The implementing decree specifies the new terms. “The employer who verifies that the worker has abandoned his position and intends to assert the presumption of resignation (…) gives him formal notice, by certified letter or by letter delivered by hand against receipt, to justify his absence and resume his publication” within of the 15 days.
However, the legislator has provided that this presumption can be annulled if the job abandonment was caused by faults on the part of the employer (harassment, for example).
“In the event that the worker intends to trust the employer for a legitimate reason that may prevent a presumption of resignation, such as, in particular, medical reasons, the exercise of the right of withdrawal, the exercise of the right to strike, the worker’s refusal to comply with an instruction contrary to a regulation or the modification of the employment contract at the initiative of the employer, the worker will indicate the reason that he invokes in the answer to the aforementioned warning in absentia”.
In turn, “the worker who challenges the termination of his employment contract on the basis of this presumption may go to the labor court. (…) It will rule on the merits within a month from its referral.”
“legal aberration”
For Michèle Bauer, a lawyer specializing in labor law, this measure is “a legal aberration.” “In effect, the presumption of resignation did not exist until this law validated by the Constitutional Council, the Court of Cassation had erected a principle: ‘resignation is not presumed,’” she writes.
“She may have simply forgotten to justify her absence,” continues Michèle Bauer. Or “it is simply enough that the employee has not justified her absence or that he has justified it and that the employer has not received it (an email lost in spam for example)”.
And to explain: “A worker can challenge his dismissal in this case indicating that he wishes to return to his position because he has proof that a certified letter has been sent, has not been received by the employer or that the letter has been lost.” or that the email justifying his absence has been sent, he will win his case and he will be reinstated ”.
Regarding the referral to the labor courts, the lawyer believes that this court “will never be able to rule within the deadline. The Labor Courts are in agony like all courts, the lack of means will not allow speed”. In reality, this measure is a complication for employers, believes the lawyer.
Disability layoffs could skyrocket
“The employee will be able to argue saying that he had no intention of resigning, so the employer will live with a sword of Damocles in his head for the duration of the prescription,” underlines Michèle Bauer. “There is a legal insecurity in this text for the businessmen who did not receive this reform with applause, they remained silent.”
On the employee’s side, the lawyer recalls that “leaving the position was often the last resort for employees who suffered from work and did not want to resign. It was also a possibility for the employer and the employee to go out there each finding their account “. : the employee was able to benefit from Pôle Emploi allowances and the employer did not pay severance pay or severance pay.
For the lawyer, employees will be able to circumvent this measure. “Let’s bet that sick leave will increase” and there will be an “increase in dismissals due to disability” (which make it possible to receive unemployment benefits).
“Employer and worker are going to lose: the employer will have to pay the compensation and will have to manage the absences of the sick worker. The worker will have lost his health, it will be more difficult for him to find work”.
Source: BFM TV
