Unjustified absence: presumption of resignation

Wednesday 31 May 2023

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Under the law, an unjustified absence can be defined as the fact for an employee to voluntarily stop coming to work, without a valid reason. Prior to a recent change in the law, this practice allowed employees to avoid resigning, and therefore, receiving no unemployment benefits, while waiting to be dismissed for misconduct. According to recent data, in the first half of 2022, 70% of dismissals for serious misconduct were motivated by unjustified absence, i.e. more than 123,000 private sector employees.

The recent "Labor Market" law (definitively adopted on November 17, 2022 and applicable from December 23, 2022) institutes a presumption of resignation in case of unjustified absence by the employee. This change was expected because unjustified absence resulted in an unclear situation, leaving the employment contract to an uncertain fate and the responsibility for the breach of contract weighing only on the employer.

Known for a long time as a real "legal void", the aim of the law was to provide an efficient response to an economic problem, but also to act against fraud at the expense of employers and the national community.

Under the terms of the decree applying the law, an employee may no longer benefit from unemployment benefits when he/she abandons his/her position, as it is presumed to be a resignation. This presumption may only be overcome when the employee has returned to his/her job or has justified his/her absence by a legitimate reason within fifteen days.