From time to time we are asked what to do in instances where employees are absent from work without permission, and whether such absence constitutes abandonment of the job, and thus – resignation. In a recent judgment it was decided that absence from work, even without permission, does not necessarily constitute abandonment of a job or expression of an explicit intention to resign from employment.
The Labor Court found that short term absences from work, without permission, may constitute a disciplinary violation and therefore cause for termination, but it cannot be seen as resignation. Resignation requires a clear and explicit expression of desire to end employment. Therefore, to the extent that an employer wishes to terminate the employment of an employee for such reason, a termination procedure – including a hearing – is required.
It should be noted that the employer holds the full discretion as to whether to approve (or not) any vacation days, however it is insufficient to inform the employee that going on a short-term leave, which is not approved, would be considered resignation and it must be clarified that going on unapproved leave constitutes a disciplinary violation.
Of course, the circumstances of each absence must be examined substantively and naturally an extended absence that is not permitted, during which the employee does not respond to the employer, may be considered abandonment of employment and as a result as expression of the employee’s intention to resign.