Job abandonment occurs in the sense of Article 337d para. 1 of the Code of Obligations (CO) when an employee fails to report for duty or abruptly leaves their job without valid reasons.
For this provision to apply, the employee must consciously, intentionally, and definitively refuse to start work or continue performing the assigned tasks (ATF 121 V 277, c. 3a).
It is crucial that the employee’s decision is clearly definitive and there is no ambiguity.
When job abandonment does not result from an explicit declaration by the employee, it should be examined whether it results from the behavior of the individual, i.e., from conclusive acts. In this case, one must determine whether, considering all the circumstances, the employer could objectively and in good faith understand that the employee intended to leave their job (TF 4C.155/2005 of July 6, 2005, c. 2.1).
When the employee’s attitude is ambiguous, it is the employer’s responsibility to formally request the employee to resume their activities. This means that the employer must issue a written warning to the employee demanding them to return to work or justify their absence before accepting a job abandonment (TF 4A_337/2013 of November 12, 2013, c. 3).
It should be noted that certain short-term unjustified absences do not fall under job abandonment, such as the employee’s absence due to health reasons without a medical certificate or a few days' absence following vacations. However, an unjustified absence of several months constitutes job abandonment within the meaning of Article 337d CO even if the employee returns afterward (ATF 121 V 277, c. 3a).
Legal Consequences of Job Abandonment
The legal consequences of job abandonment are as follows: the employment relationship ends immediately without the need for an express declaration. The employer is entitled to compensation equal to one-quarter of the monthly salary; additionally, the employer is entitled to damages if they suffer additional harm (Art. 337d para. 1 in fine CO). Article 337d para. 2 CO allows the judge to reduce the compensation at their discretion if the employer does not suffer any damage or if the compensation is less than the amount provided for in the previous paragraph.
If you would like more information on this subject, Valentin Legal Consultation will be happy to assist you at its office located at Rue du Valentin 1, 1004 Lausanne. You can also reach us by phone at 021 351 30 00 or by email at info@cjdv.ch.
Comments