It often happens that workers are absent from work for several days or weeks, without properly justifying the reasons for their absence. Can we consider it a resignation, and therefore, an abandonment of the job? Or should we articulate a disciplinary dismissal for unjustified absences from work? I anticipate that the solution is not easy and each case will have to be analyzed.
According to the Supreme Court
Before answering these questions, let's know what the Supreme Court has said on the matter, in its ruling of November 21, 2000 - reiterated in rulings of 03/29/2001 and 06/27/2001 -, where it defines what is considered a tacit voluntary withdrawal, and in what cases should it be considered:
“Such will must be externalized or manifested, through signs that allow its existence to be known or manifested, through signs that allow its existence to be known... The negotiating will can be manifested, according to consecrated differentiation, in two ways: one express, the other tacit. .
There is an express declaration when signs are used, usually written or oral, aimed at achieving the perception that what was spoken.
There is a tacit declaration when its author does not use these explicit signs, but rather carries out a behavior or conduct from which his will is unequivocally inferred; We speak of a tacit declaration, because it does not result from what was said, but from what was done.
It has also been said that resignation requires a clear, concrete, conscious, firm and definitive will from the worker, revealing his purpose... that leaves no room for reasonable doubt about his intention and scope.”
Therefore, according to jurisprudence, the first thing we must take into account when analyzing the case is whether there is a clear desire to terminate the employment relationship on the part of the worker.
Unexcused absences
As an example, I understand that there would NOT be an intention to leave the Company, (i) if the worker expresses by some means the impossibility of obtaining the medical leave report on time, (ii) if he has gone on vacation and For reasons beyond his control, he cannot return on the scheduled date, (iii) if he presents his resignation, but before the date he revokes it, (iv) if he enjoys - by mistake - more vacations than authorized, etc.
In all cases, it must always be taken into account whether there has been some element (no matter how minimal), through which the worker has justified why he or she is absent from work; In the previously mentioned situations we will NOT be able to carry out a tacit voluntary resignation, because there has not been a clear and undoubted intention to break the employment relationship, but we will be able to sanction - even with dismissal - if they are of sufficient severity and culpability.
Tacit voluntary withdrawal
Now, the person who subscribes to these lines understands that, if a worker is absent from his or her job, without justifying why, without having any reason, in a continuous and prolonged manner over time (some sentences have considered valid 21 days), requiring the company by burofax and without a response from the worker; The company tells you that your attitude will be considered a tacit voluntary resignation (resignation of the worker), without responding to phone calls, etc. Everything seems to indicate that the worker's intention is to cause voluntary dismissal, and therefore, we would NOT be facing a disciplinary dismissal but rather a termination provided for in art. 49.1.d) of the Workers' Statute.
As I mentioned at the beginning of the post, the regulations do not regulate this type of situation and the entire context will have to be taken into account to assess what situation we are in.
There is a lack of more involvement on the part of the Administration, specifically the State Public Employment Service -SEPE-, to manage, control and/or sanction this type of worker attitudes that, clearly, the only objective pursued is to force the situation in the company to obtain “fraudulent” access to unemployment benefits.
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