In the extensive and diverse practice our office has in the field of labor law and employment relations, we have often encountered dissatisfaction from our clients when they, as employers, face situations where an employee does not come to work, does not justify their absence, and there is no legal mechanism that allows them to immediately terminate the employment relationship with that employee. Indeed, it seems there is no more obvious reason for terminating an employment contract than simply noting that the employee did not come to work and did not provide an explanation for it.

However, there is a significant reason for caution in applying this basis for termination, as evidenced by the extensive court practice in proceedings for the annulment of decisions to terminate employment contracts due to violations of work discipline through unjustified absenteeism. Namely, a decision to terminate an employment contract can be contested before a competent court and annulled for various reasons if the employer does not prove the grounds for termination or if the termination procedure is not conducted correctly and legally.

First and foremost, many employers do not know that unjustified absence from work is not legally defined as a reason for termination. Therefore, the employer must prescribe this reason for termination in advance and in an appropriate form through their general act. The same act should also define the number of days of unjustified absence from work, either continuously or over a certain longer period, without continuity.

Furthermore, the employer must ensure proof that the employees are appropriately informed that unjustified absence from work is prescribed as a form of work discipline violation that can lead to termination of the employment contract, as awareness of the prohibition of certain behavior is a prerequisite for the existence of guilt on the part of the employee.

After the employer, based on attendance records, determines that the employee has been absent for the prescribed number of days, they should verify that the absence in the specific case is indeed unjustified. The employer will determine the unjustified nature of the absence depending on all circumstances and based on all established facts.

In practice, absence from work is usually “justified” by a report of temporary incapacity for work issued to the employee by a doctor. Here, we will only note that the law defines deadlines within which an employee who is justifiably prevented from working must submit a doctor’s certificate of temporary incapacity for work to the employer, and non-compliance with these deadlines represents a separate form of work discipline violation, which can also lead to termination of the employment contract.

However, the Supreme Court of Cassation, in Judgment Rev2 2397/2016 of October 26, 2017, took the position that when it is subsequently established through medical expertise that the employee was justifiably absent from work due to illness that rendered them unfit for work, it is not significant that the employee did not have proof of incapacity for work in the form of a doctor’s report or that they did not open sick leave, as the justification of absence from work due to health reasons is assessed based on actual reasons rather than formal ones and is examined in each specific case: “Since the justification of absence means there is no act of violating the work obligation attributed to the plaintiff, the conditions for terminating the employment contract based on Article 179, item 2 of the Labor Law were not met, due to which the disputed decision to terminate the employment contract of 01.02.2013 was annulled as unlawful…” (Judgment of the Supreme Court of Cassation, Rev2 2397/2016 of 26.10.2017). 

An employee who unjustifiably does not come to work must be aware that this is “prohibited behavior” and that they are consciously violating it.

However, in modern labor law practice, it often happens that an employer receives a phone call from an employee stating they have found a better job and will not be coming to work, but they simply refuse to submit a unilateral termination of the employment contract or to sign an agreement on the termination of employment.

Even in this case, where the employee, through conclusive actions, actually declares a unilateral termination of the employment contract (without submitting a written notice of termination required by law), the employer will conduct a termination procedure due to a work discipline violation against the employee. This means that the employer is obliged to issue a warning to the employee that the conditions for termination have been met and to give them a period of at least eight days from the date of the warning to provide an explanation. Only after conducting this procedure can the employer issue a decision to terminate the employment contract if it is determined that the conditions for termination are met.

The decision must be delivered to the employee personally, at the employer’s premises, or at the employee’s place of residence or stay. If the employer is unable to deliver the decision to the employee in any of these ways, they will be obliged to make a written note of the unsuccessful delivery and publish the decision to terminate the employment contract on the employer’s notice board. Only after eight days from the date of publication will this decision be considered delivered to the employee.

The date of termination of the employment relationship is also important to determine adequately, as in practice there is a dilemma about which day this is in a situation where the employee is terminated based on unjustified absenteeism. Is it the day of delivering the decision to terminate the employment relationship (in one of the aforementioned ways), the day the employee was supposed to report to work but did not appear, or the last day of the general act-prescribed duration of unjustified absenteeism?

In addition to potentially constituting a formal deficiency in the decision to terminate the employment relationship (which is why in some court decisions, lower court judgments on the annulment of the termination decision are confirmed and simultaneously modified in terms of the date of termination of the employment relationship), the date of termination will determine the duration of the employer’s obligation to calculate and pay taxes and contributions to the employee, as well as the procedure the employer will apply to deregister the employee from mandatory insurance.

Therefore, employers are obliged to follow a very formal termination procedure and, until the employment relationship is terminated, bear the material costs of paying the applicable contributions during the unjustified absence based on the lowest contribution base applicable at the time of termination.

Namely, in accordance with the provision of Article 51, paragraphs 3 and 4 of the Law on Contributions for Mandatory Social Insurance, if the employer does not pay the salary by the last day of the current month for the previous month, they are obliged to calculate and pay the contributions for the previous month by that deadline on the lowest monthly contribution base from Article 37 of this law. If the employer does not calculate and pay the contributions for the previous month within this deadline, the competent organizational unit of the Tax Administration, ex officio, and based on available data, calculates the contributions on behalf of and for the account of the employer. 

Considering all the aforementioned, it seems that unjustified absence from work is one of the most common, but also one of the most vulnerable bases to terminate an employment contract. It is up to the employer to adequately and lawfully carry out all steps in this procedure, which is why they are often forced to seek the experts assistance to terminate the employment relationship with an employee who unjustifiably absents themselves from work.









Disclaimer:  This text is written for informational purposes only as well as to give general information and understanding of the law, not to provide specific legal advice. For any additional information feel free to contact us.

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