between false dismissal and real resignation, legal uncertainty remains

between false dismissal and real resignation, legal uncertainty remains

2023-11-21 07:30:17

Social right. Can an employer today dismiss for misconduct an employee who has voluntarily abandoned their position, while the law of December 21, 2022 and then the decree of April 17, 2023 have provided for a specific procedure leading to a simple presumption of resignation? A qualification therefore opposed to the classic dismissal for misconduct, which should allow Unédic, the joint association which manages unemployment insurance, to ultimately achieve 380 million euros in annual savings.

This development was also intended to dissuade certain impromptu departures, in the same way that the end-of-contract compensation for fixed-term contracts is intended to encourage precarious workers to stay until the end.

Successful deterrence? Surprise figures: this law would have achieved its goal even before its implementing decree! The latter dates from April 17: the number of dismissals for serious or gross misconduct was in the second quarter of 2023 30% lower than in the second quarter of 2022, according to the Ministry of Labor survey published on October 31, 2023, concluding: “This decline comes in the context of the promulgation of the law introducing the presumption of resignation for abandonment of post. » It was indeed difficult to understand such a drop in faulty behavior, a priori independent of the economic situation.

Complex situation

But, according to Unédic, half of the abandonments are carried out in agreement with the employer, including 23% suggested by him: the border is therefore porous between arranged dismissal, accepted abandonment of position and conventional termination. There is also no doubt that the exceptional success of the latter is primarily due to the benefit of unemployment benefits, paid by Unédic: the method of termination of the contract often depends on access or not to those -this.

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Read also: Article reserved for our subscribers Job: abandonment of post, real-false resignation?

However, on the business side, the situation today is doubly complicated. Of course, the special rules deviate from the general rules. But article R. 1237-13 seems to leave her free to choose: “The employer who intends to assert the presumption of resignation must send him a letter…” : to the point of being able to choose the procedure of presumption of resignation for MA who will find himself deprived of an allowance, but dismiss for serious misconduct Mrs B. who will therefore be able to benefit from it?

This is one of the arguments developed by the CGT, FSU and Sud, which contested the legality of the decree before the Council of State, the Constitutional Council having however considered that these provisions did not disregard the principle of equality.

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