Job desertion, what it is and its consequences

Leaving a job

Leaving a job (or tactical resignation) is the personal choice of an employee, without prior notice, not to continue his or her employment relationship with a company. It is the employee's decision alone, and the essential difference with voluntary redundancy is that in voluntary redundancy the employee informs the company of his or her decision to leave by giving notice.

It is therefore the existence or absence of notice that essentially determines whether we have an abandonment of the job or simply a voluntary resignation.

What is and what is not job desertion. Non-attendance

Non-attendance at work should not be confused with job desertion, it may just be a lack of attendance at work as when someone is ill. For example, there may be cases where the employee does not inform the employer of the absence and the reason for it; however, this does not constitute job abandonment because there is no intention on the part of the employee to terminate the employment relationship.

In order for an absence from work to be considered abandonment of the job, it must be determined that the employee's conduct clearly expresses his or her determination to terminate the employment relationship with the company that hired him or her. It is in these cases that the assistance of a labour lawyer may be most appropriate.

If, on the other hand, the employee is voluntarily absent from work, but does not express his will to leave the company, we are dealing with a situation of non-compliance with his obligations to the company and the company would be entitled to take legal action against the employee, even taking the decision to dismiss him. In this case, we would be talking about repeated and unjustified absenteeism, which is typified in article 54 of the Workers' Statute as a breach of contract and could therefore entitle the company to initiate disciplinary dismissal proceedings.

Does leaving my job mean the termination of my employment contract?

The quick answer is no. Job abandonment is not a cause for termination of the employment contract, it is initially considered a lack of attendance at work. Obviously, non-attendance, if not justified by the employee (as is the case in the case of abandonment of the job), could lead to legal action by the company, even leading the company to claim compensation from the employee.

Article 49. d) of the Workers' Statute establishes that the resignation of an employee must be preceded by prior notice, however, in the case of abandonment of a job there is no such prior notice, which is why it is not possible to speak of termination of the contract.

Abandonment of work means breaking the employment relationship with the company, but without the worker having been dismissed or resigned, it is case law that has determined that abandoning a job can be classified as a cause for termination of the employment contract.

What are the effects of leaving work? Severance pay for leaving the job

The main effect of job abandonment is that the employee will not be entitled to severance pay (as there has not been a dismissal but the employee voluntarily leaves his or her job). However, if it is the company that decides to dismiss the employee on the grounds of abandonment of the job, the employee will have 20 days from the date of notification of the dismissal to claim against the company against the dismissal.

Another of the effects of the abandonment of the job is the impossibility of withdrawal when it is demonstrated that the resignation is indeed voluntary on the part of the worker.

With the abandonment of the job, once it has been proven that this is the case and not a normal lack of attendance at work, the worker resigns without giving notice and therefore fails to comply with the obligations established in his or her employment contract that the worker has with the company. In this case, the company could claim compensation from the worker for the damages caused. In most cases, the compensation to be received by the company will be the equivalent of the days of notice not given by the worker.