Leaving work: why the “presumption of resignation” should worry us

A gift to the leaders or the resolution of a serious problem who prevented the smooth running of businesses?

You have probably heard of the amendment on the presumption of resignation as part of the Unemployment Insurance Reform Bill. It foresees that from now on it would be the abandonment of the position of employee is equivalent to resignationand was adopted with 219 votes against 68 in the National Assembly.

What would this new provision consist of compared to what is currently being done? in terms of termination of the employment relationship? And why are labor law specialists so worried? We explain to you.

What is the abandonment of work?

Right now, giving up work in the private sectorit is when you no longer show up at your job without notifying your employer or that you are absent “Prolonged or repeated” without giving any reasons.

Certain circumstances do not fall into the category of leaving work: if your health requires periodic visits to the doctor, if you face the death of a loved one, or even when you exercise your right of withdrawal (when employees believe that the their working conditions put them in danger and that they stop their business so that their employer finds solutions).

“There is no list of legitimate reasons for leaving the position, we proceed on a case-by-case basis”underlines a Lose I Marie-Océane Gelly, labor lawyer, who remembers him abandoning the position does not constitute a way of terminating the employment relationshipunlike resignation (on the initiative of the worker), dismissal (on the initiative of the employer) or conventional termination (which takes place by mutual agreement between the two parties).

Faced with the abandonment of work, what can the employer do? He can give formal warning to the employee by registered letter to ask him to justify his absence. The lack of response can therefore lead to dismissal. In other cases, in addition to the payment of the salary, he can suspend the contract.

For Me Gelly, the amendment just adopted “it starts from the principle that there is a problem in companies because there would be job vacancies that would upset the company” : “The problem is that there are no official statistics. ”

Without a precise measurement of the number of dropouts, we really can “phenomenon”as argued by some defenders of the amendment who say they want to secure very small businesses?

Behind the abandonment of work, the suffering at work

Currently, giving up work makes it possible receive unemployment benefit from Pôle Emploiunlike resignation, which is precisely one of the reasons for establishing a presumption of resignation: the conditions for leaving office would be better than those for resigning and some employees would benefit.

“Legally it is not correct to make the link between abandoning work and receiving unemployment benefit”explains Marie-Océane Gelly, who points out that abandoning a position does not automatically lead to dismissal.

He observes in his professional practice that the abandonment of the post is ultimately very marginal and above all a means of last resort:

“The government is trying to present this as a measure to avoid business disruption because there would be abuse. ButThe rare cases I see of abandonment of work, these are people who come there because something is wrong at work, because they are in a situation of suffering, because there are deficiencies in the execution of the contract.

And above all, they are not top executives: they are people with low salaries, who do not have access to legal information.that do not have thes ways to get advice, and who will do it out of desperation. “

A measure that could therefore weaken those who are already in difficulty?

A bill “which aims to radically change the labor code “

But it is also the terms used that pose a problem, explains the lawyer. The resignation, in fact, must result “A clear and unequivocal desire to terminate the employment relationship. “ With this term presumption, this notion is completely called into question.

“This idea of ​​presumption of resignation is very strong and it is interesting to see that there is no counterpart for employers, there is no presumption of dismissal when an employer behaves badly towards his employee.Me Gelly points out.

With this reform, the abandonment of the office will therefore be considered as an alleged resignation, but does the worker have the possibility of recourse available? The amendment specifies that an employee can challenge the violation of his contract to the labor court, which will have to decide within a month. Simply unattainable, says the lawyer, for whom this simple deadline is not sustainable.

“This reflects the lack of knowledge of the functioning of the labor court. There have been reforms on how to enter the labor court, which means that today it is a more complicated jurisdiction to enter, once again for the most precarious, the most fragile. And then, once the decision has been made, does this mean that the employee can be reinstated in the company? And under what conditions? “

This measure, if it were to be maintained until the end of the examination of the bill, would then weigh a serious threat to workers’ rights.

“We are faced with a bill that aims to radically change the labor code, sums up Marie-Océane Gelly. ” It is not a question of changing the Unemployment Insurance Convention to say that redundancies due to station abandonment will not be compensated. No, it is a question of creating a presumption of resignation, which is symbolically much stronger and which raises questions in relation to the notion of consent in the context of employment relationships “

In short, a dangerous track. The bill was adopted on Tuesday 11 October at first reading, which means it must now be presented to the Senate from 25 October.

Photo Credit: Jennifer Aniston in “35 Hours Is Too Long Already” – Twentieth Century Fox