The employment contract presupposes the coincidence of the wills of the employer and the employee in terms of its conclusion. Certain of her, precisely, at the moment, her solution – but uncertain of the time and the manner in which it will come. The contract can be terminated (of course) by agreement of the parties. Also after its termination: either by the employer (:dismissal) or (expressly or implicitly) by the employee (:resignation or voluntary withdrawal). In both cases, however, the employer is burdened with specific obligations. In the present we will deal with the last of them: the voluntary departure of an employee.
We were already concerned with this case in our previous article. There, we dealt with the prescribed procedure, which – under the previous regime – the employer was obliged to follow after the voluntary departure of his employee (art. 38 n. 4488/2017, as codified in art. 320 p.d. 80/2022). Also, with the issues arising from the relevant procedure. However, the recent labor law (:n. 5053/2023) changed the applicable procedure. About the recent-relevant legislative changes, the present!
Notice of Voluntary Resignation
As expressly provided (and, under the previous regime, it was provided), the employer is obliged to announce, in the P.S. INSTRUMENT II, every case of voluntary resignation of an employee – by electronic submission of the provisions under no. 40331/13.9.2019 HR of the Minister of Labor and Social Affairs forms. [Such as, respectively, any case of termination of an open-ended employment contract or termination of a fixed-term employment contract or project. As well as any case of voluntary termination of the trial period (which is provided for in art. 1A p.d. 80/2022) or consensual termination of the employment contract, such as voluntary exit (art. 320 § 1 p.d. 80/2022)].
Preceded Regime
Under the previous regime, it was stipulated that the aforementioned notice of voluntary resignation of the employee had to be accompanied by an electronically scanned form signed by the employer and the employee. Alternatively: from an out-of-court statement by the employer to the employee, informing him that he has voluntarily left and that this will be announced in the “ERGANI” information system. In the latter case, the employer’s extrajudicial statement had to be served on the employee no later than four (4) working days after his voluntary departure. The relevant announcement should have been made the next business day after the extrajudicial statement was served.
The procedure in question created questions and difficulties regarding its application, in particular, in two cases of the employee’s implicit will to terminate the employment relationship. Specifically: (a) in the event that the employee refused to sign the form for their resignation (: Form E5), as well as (b) in the event that the employee stopped coming to work, with the result, likewise, of not signing the relevant printed material. It should be noted, of course, that the employee’s non-attendance at work should be unjustified. Naturally, the employee’s justified absence from his duties (e.g. in cases of leave, pregnancy, childbirth, military service and illness – provided that the legal conditions are met) cannot be considered as an implicit termination of the employment contract by him employee.
In the aforementioned two cases, the cooperation of a bailiff was necessary. At the same time, however, the employer had to safely conclude – how? – the implicit complaint on behalf of the employee. Also, service and notification by the employer had to take place within strict deadlines.
Law 5053/2023 improved the (obviously) problematic process of resignations – to a certain extent.
Purpose of the New Regulation
The new regulation for the resignation of an employee aims – according to the Explanatory Report of Law 5053/2023 – to simplify the process of electronic announcement in the ERGANI II Platform of the resignation. Also, in assisting businesses in capturing the true status of employees who have resigned, they still appear as employees.
At the same time, with the new regulation, the legislator provides for the provision of insurance barriers, to prevent its circumvention by employers (or at least they declare that they are doing so) (see related Memorandum to law 5053/2023 on article 23).
Current Status
It is now provided (in the newly introduced § 3 of art. 3 of the Presidential Decree 80/2023), that the employee’s unjustified (arbitrary) absence from work for more than five consecutive working days can be considered as termination of the contract on their part. It is required, however, that an additional period of five consecutive working days has passed since their compulsory employment by their employer, which (a) is posted on the ERGANI II Platform and cumulatively – as specified in the Memorandum of Law 5053/2021 on art. 23- (b) evidenced by any suitable written means. In this case, the employer is obliged, on the next working day after the end of the period of five consecutive working days of the unjustified (arbitrary) absence of the employee (which follows the period of five consecutive working days from the employer’s compulsory harassment), to announce the employee’s resignation to the ERGANI II Platform, without requiring the employee’s signature.
The new provision does not require the cooperation of a bailiff. It also delimits – in a more specific and safe way – the relevant time limits: the termination by the employee and the obligation to announce the resignation by the employer.
However, cumulatively, the process of such resignation requires the passing of, as a minimum, ten consecutive working days. This period is evaluated as, obviously, excessive. In particular, the period of five consecutive working days that must elapse from the employer’s mandatory notification of the employee. There can be no doubt that the requirement to pass such a long period of time creates the conditions for abusive behavior on the part of (malicious) employees. The latter will have at their disposal a sufficient period of time to change their possible (implicit) will to leave their job. Also to delay their departure from work or, simply, to inconvenience (:revenge) their employer. In other words: an unjustified absence of an employee for nine consecutive days does not count as resignation in the event that one, and only, working day follows(!!!). Even if it is followed by another nine-day (unexcused) absence. And one more. And so on…
A problem also arises regarding the completion of the day of the employee’s departure in the -to be submitted- form E5: it is more correct to declare the first day of their unexcused absence.
In the case of the employee’s return to work – either before or after the relative inconvenience of the employer – it is reasonable for the employee not to be paid nor to be insured for the days of their unjustified absence. Coincidentally, of course, the relevant provision in their employment contract.
The Legal Consequences of Non-Compliance with the Employer’s Obligations
In the event that the employer does not comply, within the deadline, with the obligations of announcing the resignation, the employment contract is considered to have been terminated by the employer’s irregular termination (art. 320 §4 Presidential Decree 80/2022). It is, in this case, an establishment of a presumption in favor of the employee. The employee then has three options:
(a) To accept (expressly or implicitly) as correct the process of their resignation – then the employment relationship will be terminated.
(b) To claim the payment of severance pay, due to untimely termination of their employment relationship.
(c) To bring an action for the claims arising from the invalid dismissal (due to non-compliance with the formal conditions of dismissal). That is, to ask for overdue wages and their re-employment at their job.
In each of the last two cases, the employer will have the burden of proving that the termination of the employment relationship occurred due to resignation and not due to dismissal.
Work Retention
But what happens in the case of work retention? In the event, i.e., that the employee exercises their right to refuse the fulfillment of their benefit, until the employer fulfills an obligation incumbent upon them (e.g. payment of accrued wages). Based on an explicit legislative provision (: art. 320§5 Presidential Decree 80/2022-as amended by art. 23 law 5053/2023) the provisions of the law (specifically §§2, 3 and 4 of the disputed provision) do not apply in the case of work retention.
It should be noted that the specific regulation/clarification regarding the suspension of work was not included in the bill, as it was submitted to the Parliament. Also, it was not added with a timely amendment (therefore, the Memorandum of Law 5053/2023 does not include a reference to the relevant regulation).
The resignation of an employee from their job is probably the most common way to terminate the employment relationship. The recent legislation simplified and made more rational the existing relevant regulations. However, it did not deal with problematic situations that, on a practical level, can be dealt with: long, for example, unjustified (but not ten days continuous) absence of the employee from their work. The long maintenance of such a serious pending in a working relationship, obviously strikes, in the end, against the business itself and its sustainability. Indirectly (but not clearly-voluntarily though) also against the other employees. A three-day, only, (proven) unjustified absence of the employee would, in any case, be enough to terminate the employment relationship. Justifiably, therefore, we look forward to the next, relevant, legislative regulation.-
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 12th, 2023).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.