When an employee does not show up for work, he might have a good reason (e.g. holiday, illness or leave of absence). An employee should agree his absence with the employer upfront or he should notify his employer of an unforeseen absence within the time set for such situations (unless there are circumstances beyond his control). If he fails to do so, the absence will be considered as unjustified.
During summer, more than any period during the year, employers are confronted with unjustified absences of their employees. This newsletter will provide an overview of the actions the employer can take according to current case law in this respect.
Registered letter
Before any of the below measures is taken, it is recommendable for the employer to ask the employee by registered letter to provide the reason for his absence within a specified time. This will allow the employer to obtain certainty as to the unjustified character of the absence and will produce clear proof.
Sanctions provided for in the work regulations
When an employee is absent and this absence is unjustified, he fails to meet his contractual obligations and can be imposed a sanction. All possible sanctions must, however, be written down in the work regulations of the company, e.g. a written notice of default or a fine.
In the light of the obligation to reason (‘motivate’) a potential dismissal (see below), it is recommendable for the employer to keep a written track of this in the personal file of the employee.
Non-payment of salary
Salary is the financial compensation that an employee receives for the labour he performs on the basis of the employment agreement. So when the employee is at fault for not performing the employment agreement properly, the employer can withhold the salary of the employee. It is, however, of great importance that it is established that the absence is unjustified and that the employer has all the relevant evidence to prove this. If not, the non-payment of the salary can be considered a crime resulting in penalties for the employer and may warrant a classification as dismissal for cause on the part of the employer.
Dismissal
The last and most radical measure will be termination of the employment agreement. Depending on the factual circumstances, there are several options:
a. Dismissal with payment of a severance fee or respect of a notice period
An employer can always dismiss the employee concerned with immediate effect by means of a notice period or payment of the legal severance fee. The employer should however consider that when terminating the employment contract by means of a notice period, the period of illness suspends the notice period, whereas this is not the case when dismissing the employee with payment of a severance fee.
Do, however, keep in mind that the employee can ask the employer to properly reason the dismissal based on the principles of Collective Bargaining Agreement no. 109. If the dismissal is not properly reasoned, the employer runs the risk of having to pay an additional compensation due to what would be considered as manifestly unreasonable dismissal. In addition, the Anti-Discrimination Act of 10 May 2007 must also be borne in mind. Should the employee claim that he was absent due to illness, the employer might be faced with a claim for discrimination based on health status.
b. Dismissal for cause
Unjustified absence will only be considered ground for immediate dismissal, i.e. for cause (“dringende reden/motif grave”), if the specifics of the case render all further collaboration immediately and definitively impossible and provided that the specific procedure is complied with. This situation can be clear-cut if the employee in question disappears and the employer is no longer able to contact him. However, in many cases, the employee will come back to work and try to justify the absence and explain himself.
In general, labour courts are rather reluctant to use the classification of dismissal for cause due to unjustified absence. A one-time and/or short unjustified absence will in principle not be considered as sufficient. Several unjustified absences and following notices of default seem required. Moreover, the specific procedure needs to be complied with at all times. If not, the cause will not be recognised and the employer will be ordered to pay a severance fee and possibly even other indemnity fees.
c. Implicit dismissal
Finally, an employer could also claim that the employee unilaterally terminated the employment agreement due to his unjustified absence.
Based on current case law, labour courts do not tend to easily accept this classification and so it must be very clear from the acts and attitude of the employee that he has the intention to end the employment agreement. If not, the employer himself may be deemed to have terminated the employment agreement (and payment of a severance fee and possibly even other indemnity fees might be due).
In summary, context and diligence are key
The key message is to always look at the specifics of the case beforehand (duration of the absence, repetitive character, specific circumstances, track record of the employee etc.). There is not one measure that applies to every situation. The context of the case is always the decisive factor.
When in doubt, first send a registered letter to obtain certainty as to the unjustified character of the absence. The employee might still provide an explanation justifying his absence or provide more context that can be taken into account when choosing the appropriate measure to deal with the situation.
