Job abandonment needs to be correctly identified by companies, after all, it can even lead to dismissal for cause.
Although it is a common situation to happen, the cases of job abandonment always leave doubts. Most companies are afraid of what can or cannot be done in these situations, but it is always important to remember that the legislation serves precisely to give the correct direction.
Therefore, in this article you check out the following subjects:
- What is job abandonment ?;
- What does the law say about job abandonment ?;
- How should the company act in cases of job abandonment ?;
- What if the worker justifies himself or reappears in the company ?;
- What rights does the employee have in case of dismissal ?;
- How to communicate the employee if he does not show up?
What is job abandonment?
Job abandonment is very simple to understand, after all, it happens when a company employee stops coming to work and carrying out his activities.
What characterizes the abandonment of employment, is that this absence of the employee happens without justification. That is, the employee does not give any type of warning or explanation to the employer when they stop performing their activities in the company, not even to officially leave the company.
Such a professional attitude is inadequate, and obviously has consequences for the employee.
What does the law say about job abandonment?
According to the labor legislation presented by CLT, the employer has the right to dismiss the employee for just cause for leaving the job. However, the same CLT does not define exactly how many days are considered job abandonment.
Still, the ratio of how many missing days characterizing job abandonment are taken into account by the country's labor courts. Thus, according to the Superior Labor Court (TST), a 30-day period of prolonged absence not justified by the employee is considered to be abandoning work.
However, employers and employees need to be on the lookout. As this is a rule considered by the labor courts, in some cases the court may consider that there is clear evidence of job abandonment even before the 30 days are up.
In these cases, especially when it is proven that the professional is already working elsewhere, the employer does not need to wait this period of one month to consider leaving the job, and can already effect the dismissal for just cause.
How should the company act in cases of job abandonment?
When an employee fails to appear at the workplace without sending any justification to the company, the company must contact the employee. After all, although job abandonment is an option, unforeseen circumstances and emergencies can happen to anyone.
If the company's contact results in an employee justification, job abandonment is not yet considered. If the professional does not present an argument, or even does not accept the contact of the company, the company may consider the abandonment by the employee.
Situations subject to termination for job abandonment
As already said, job abandonment is subject to dismissal for just cause. And, at this point, it is very important to consider article 482 of the CLT. According to the article, the situations subject to this type of contract termination are:
- a) act of improbity;
- b) incontinence of conduct or bad procedure;
- c) habitual negotiation on own account or on behalf of others without the employer's permission, and when it constitutes an act of competition to the company for which the employee works, or is detrimental to the service;
- d) criminal conviction of the employee, res judicata, if there has been no suspension of the execution of the sentence;
- e) negligence in the performance of the respective functions;
- f) habitual intoxication or while on duty;
- g) breach of company secrecy;
- h) act of indiscipline or insubordination;
- i) abandonment of employment;
- j) damaging act of honor or good fame practiced in the service against any person, or physical offenses, under the same conditions, except in the case of self-defense, self or of others;
- k) damaging act of honor or good reputation or physical offenses practiced against the employer and superiors, except in the case of self-defense or self-defense;
- l) constant practice of games of chance;
- m) loss of qualification or requirements established by law for the exercise of the profession, as a result of willful misconduct by the employee.
When a job abandonment case is actually proven, it is considered that the company has been harmed by the employee and, therefore, can take the necessary steps to make the professional's termination official.
Even so, the entire process of terminating the employee's employment contract must always be carried out in accordance with the rules of the labor legislation.
What if the worker justifies himself or reappears in the company?
As already mentioned, it is usually only after 30 days of unexplained absence that the company can carry out the resignation employee for cause. Therefore, if the employee reappears before completing the 30-day period, it is important that their justifications are formally presented to the company.
O article 473 of the CLT specifies everything that the employer is obliged to consider as justification of the employer, including health problems or the death of family members, for example.
When the justification is in accordance with the law, the employee must not be dismissed. Also remember that the employer is not required to fire the employee, even if the job is proven to be abandoning.
If, even with the employee's abandonment, the company chooses to keep him in the staff, the employer can warn the employee for the missed days, and make the appropriate salary discounts for the days not worked.
What rights does the employee have in case of dismissal?
When it is considered abandonment of employment, the employee loses several rights that are considered in other situations, but are not considered in dismissals for just cause.
When leaving the job, the professional loses the right to receive benefits such as paid notice, the 40% FGTS fine and other severance fines.
However, the employee still has the right to receive:
- Salary related to days worked in the month before leaving the company;
- Vacation overdue, plus the constitutional 1/3 (if there are overdue vacations);
- Back wages (also if any).
The amounts must be paid by the company within 10 days to the worker, from the date of formal notification of the dismissal.
It is very important to emphasize that the worker who is dismissed for just cause also does not have the right to take out unemployment insurance. In addition, he is still unable to withdraw the FGTS.
How to communicate the employee if he does not show up?
To effect the dismissal, it is obviously necessary to inform the employee about this. Thus, it is up to the company to contact the professional to make the dismissal official.
After the 30 consecutive days of the employee's absence, the company must notify the employee requesting his / her appearance at the established place, usually the company's HR. This attendance must be made within a certain amount also by the company.
The notification must be sent by post, with the need for an acknowledgment of receipt.
It is also the responsibility of the enterprise's HR department to maintain a controlled record of the employee's absence every day, as well as of activities not performed by the employee. Likewise, keep a record of all dates and times of attempts to contact the professional in question.
If, even with the notification, the professional does not come to the company or manifest himself in any way, the dismissal for just cause can be made official nonetheless. This formalization must also be sent by post, with acknowledgment of receipt.
If the company wants to be even more careful, such notification can be sent by the notary, also with proof of delivery. In both cases, the employee must sign all documents to configure the dismissal.
Although it may seem like a bureaucratic process, it is uncommon for a company to go so far as to carry out all the procedures for such a dismissal without counting on the presence of the professional.
Even after leaving the job, it is also in the employee's interest to leave the situation regularized, especially so that he can continue in a new job.
It is also worth mentioning that, in any case of job abandonment, it is interesting that the company seeks to know the employee's motivations. If they are linked to the company's internal conduct, or other points of the type, it is essential that the HR look for ways and strategies to resolve these issues, thus avoiding new dropouts by professionals in the enterprise.
Now that you know exactly what job abandonment is and how the company should act in such cases, take the opportunity to subscribe to our blog newsletter and start receiving various content like this, in addition to checking subjects that can help reduce the turnover of your employees.