Work abandonment – Legal aspects

Abandonment does not terminate the contract – legal aspects

The perspective of starting new employment, often on more favourable conditions than the previous ones, at times encourages employees to immediately leave the current employer. Sometimes an argument that urges them to abandon work is the requirement to start employment at the new company without delay. These circumstances result in the fact that employees skip the stage of formally terminating the employment contract, thereby forcing their employer to acknowledge an accomplished fact. This troublesome situation is not regulated in the Labour Code which stays quiet about abandoning work. Currently, therefore, it is an actual, and not a legal, way of terminating employment. In consequence, the employee’s employment relationship continues, and so the employer must take steps in order to formally terminate it.

Disciplinary proceedings after work abandonment

Unexcused absence is a justified reason to dismiss an employee disciplinarily. In a situation where the employee fails to appear at work and breaks all contacts with the company, the employer is entitled to apply the disciplinary mode specified in Art. 52 of the Labour Code. However, in order to apply it, the employer needs to ensure that the employee’s absence is not a result of circumstances not attributable to the employee. It is therefore advisable to conduct verification actions, such as an attempt to contact the employee by phone or through the company courier. It is worth making an official note documenting such activities, which should then be entered into the personal file.

The employer must bear in mind that disciplinary dismissal may only occur within 1 month of the day when the employer discovered the employee’s reproachful behaviour, maximum. If the employment contract subject to termination is a contract concluded for an indefinite term, then consulting the intention of disciplinary dismissal with the company trade union (if there is such a trade union present in the company) shall be necessary. Depending on the circumstances, even a consent of the relevant authority may be obligatory, if the employee is entitled to special protection not only from dismissal, but also from immediate termination of the employment relationship.

Without the employee, without compensation

An employer who was surprised by an employee unexpectedly leaving the company, may, due to that, suffer actual losses. Apart from burdensome formalities connected with terminating the employment contract, the employee’s absence causes disturbances in the implemented work organisation and the necessity to search for a new employee. Depending on the industry and the season, finding a substitute may prove troublesome. All those difficulties result in the fact that employers, while feeling hurt by their employee, expect compensation from him/her. They sometimes ground their claims on the basis of Art. 611 of the Labour Code. According to that provision, damages are awarded to the employer, if an employee unjustifiably terminated the employment contract in the mode specified in Art. 55 § 11 of the Labour Code, i.e. due to the employer’s fault. The indicated regulation may not, however, be applied in the case of work abandonment by an employee. It is not the case of parting due to a severe breach by the employer of his basic duties. The employer may only consider going to court to claim compensation due to damages caused by the employee in the employer’s property, in accordance with general rules applicable to employee financial liability. The cause of damage would then be work abandonment committed by the employee. The employer needs, however, to remember that in such a situation, he will be bound to prove the breach of duties by the employee, the fact that a damage occurred and a causative relation between this breach and the damage.

Source: Gazeta Podatkowa of 10 July, 2014.