Does the presumption of resignation following abandonment of post really deprive the employer of carrying out a dismissal?

To wonder about the possibility for an employer to dismiss an employee for job abandonment seems incongruous, Yet this is the question we must now ask ourselves. following publication: 

• of Decree No. 2023-275 of April 17, 2023 on the implementation of the presumption of resignation in the event of voluntary abandonment of position by the employee (Official Journal of the French Republic of April 18, 2023
• a question-and-answer document on the presumption of resignation published on Ministry of Labor website

 

The color is announced from the outset by this last document since the Ministry affirms that the employer who " wishes to terminate the employment relationship with the employee who has abandoned his position, must implement the formal notice and presumption of resignation procedure. He is no longer entitled to initiate a dismissal procedure for misconduct ».

Such a position seems quite far from the letter of article R.1237-13 of the labor code and even appears directly contradictory with the latter.

This article (resulting from the aforementioned decree) provides that the employer who finds that the " employee left his job and intends to assert the presumption of resignation provided for in article L.1237-1-1 puts him on notice ».

The mere fact that the employer has the possibility of asserting the presumption of resignation attests that this would indeed be a choice which belongs to him and to him alone.

But it is true that article L.1237-1-1 of the labor code seems to establish a presumption of resignation which could be described as "automatic" because of the fulfillment of four conditions: 

• • • voluntary abandonment of post,
    • a notice,
    • no return to work (within a minimum of 15 days),
    • the absence of reasons for proof of absence.

 

We could therefore deduce that: 

• An employer who decides to initiate a dismissal procedure without issuing a prior formal notice would therefore escape this presumption and would not be bound by the government's interpretation.
  At this stage we will not dwell on the consequences and fragilities induced in the event of litigation by a dismissal for abandonment of post without prior notice, everyone will deduce them.

• Conversely, should we consider that there is no salvation for the employer who would give formal notice and who would therefore be bound by the presumption of resignation?
  And if the latter decides to initiate the dismissal procedure before the end of the 15-day period granted to the employee to return to work? 

 

Like many new texts, this raises difficulties of interpretation but we will admit that they are particularly troublesome in the present case, since it is a problem with which companies are confronted almost daily.

The intention of the legislator was clearly to exclude job abandonment from the category of involuntary loss of employment. to deprive employees of unemployment insurance compensation.

Did he want to make it a case prohibiting any other reason for breaking up?

According to the Ministry, the answer is obviously in the affirmative, but what will happen to the courts which will remain sovereign with regard to the interpretation to be adopted? 

It should be remembered that not so long ago, the Court of Cassation considered that the approved contractual termination was exclusive of any other amicable mode of termination of contractual relations (Sociale, October 15, 2014, n° 11-22.251).