France Update: Does the presumption of resignation following abandonment of post really deprive the employer of making a dismissal?

Questioning the possibility for an employer to dismiss an employee for abandonment of position seems incongruous, yet this is the question that must now be asked following the publication:

• Decree No. 2023-275 of 17 April 2023 on the implementation of the presumption of resignation in the event of abandonment of voluntary position of the employee (Official Journal of the French Republic of 18 April 2023
• a Q&A document on the presumption of resignation published on the website of the Ministry of Labour

The color is announced from the outset by this last document since the Ministry states that the employer who “wishes to terminate the employment relationship with the employee who has abandoned his position, must implement the procedure of formal notice and presumption of resignation. It is no longer intended to initiate dismissal proceedings for misconduct”.

Such a position seems quite far from the letter of Article R.1237-13 of the Labour Code and even appears directly contradictory to the latter.

This article (resulting from the aforementioned decree) provides that the employer who notes that the “employee has abandoned his position 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 opportunity to assert the presumption of resignation attests that this would be a choice for him and him alone.

But it is true that Article L.1237-1-1 of the Labour Code seems to establish a presumption of resignation that could be described as “automatic” because four conditions are met:

• voluntary abandonment of post,
• a formal notice,
• failure to return to work (within a minimum of 15 days),
• the absence of grounds for proof of absence.

It could therefore be inferred that:

• An employer who decides to initiate dismissal proceedings without giving prior notice would therefore escape that 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 put in formal notice and who would therefore be bound by the presumption of resignation?
• What if the latter decides to initiate the dismissal procedure before the end of the 15-day period given to the employee to return to work?

Like many new texts, this one raises difficulties of interpretation but it will be admitted that they are particularly troublesome in the present case since it concerns a problem that companies face almost daily.

The intention of the legislator was clearly to exclude the abandonment of post from the category of involuntary job losses in order to deprive employees of compensation by unemployment insurance.

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

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

It should be recalled that in a not so distant time, 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).

Ginestié Magellan Paley-Vincent, France, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact france@transatlanticlaw.com

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