Unjustified Absence of Employee | Ziamparas Law Firm

Q: The employer claims that I resigned due to absence. What am I facing?

The employer is attempting to present the absence as a tacit termination by the employee, in order to avoid paying the statutory severance. There is no law specifying a particular number of absence days after which the contract is automatically terminated. The court examines each case separately, considering the cause of the absence, its duration, whether the employer was informed, the years of service and prior conduct, on the basis of Articles 200 and 288 of the Civil Code. Many cases of absence due to illness, family problems or medically documented reasons have been held not to constitute resignation.

Q: What is the role of the lawyer in such cases?

The lawyer assesses the justified nature of the absence and the sufficiency of the evidence, sends an extra-judicial notice interrupting the statute of limitations, represents the employee before the Labour Inspectorate, and files a lawsuit for severance pay and unpaid wages. In court, the lawyer rebuts the claim of tacit termination by invoking the principles of good faith, length of service and notification given. The Law Firm ZIAMPARAS D. & ASSOCIATES handles labour disputes with the aim of safeguarding the employee's severance.

Employees and employers frequently ask how many days an employee may be absent from work without justification. No statute or other provision specifies the number of days during which a salaried employee must be absent without justification in order for the employment contract to be deemed terminated on his or her part.

The question of whether a specific absence of the employee did or did not bring about termination of the employment contract is left to the judgment of the court, which, applying Articles 200 and 288 of the Civil Code (AK), taking into account the principles of good faith and commercial morality, and after assessing the cause of the absence, its duration, the fault of the employee and the factual circumstances of each individual case, will rule whether such absence, on an objective assessment — that is, irrespective of whether the employee intended to terminate the contract — should be regarded as a tacit termination on his or her part.

The Court also takes into account the length of service of the employee with the employer, his or her overall prior conduct, the degree of performance of duties, that is, whether he or she responded satisfactorily in the position or performed duties defectively, as well as the frequency of absences.

It is worth noting that absence due to short-term illness, pregnancy and post-natal recovery of a female employee, and as a rule any absence justified by a medical certificate (even if it exceeds the limits of short-term illness), is by no means considered an unjustified absence.

Internal employment regulations duly ratified pursuant to applicable provisions often provide a limit on days of unjustified absence which, if exceeded by the employee, brings about termination of the employment contract through his or her fault (usually 3-5 days).

Unjustified absence from work, since it constitutes contractually deviant conduct and defective performance of the employee’s duties, gives the employer the right to lawfully terminate the employment contract at any time, paying the statutory severance. The employer’s right to terminate the contract without severance exists only where the employee deliberately performs his or her duties defectively, with the intention of provoking dismissal by the employer in order to obtain severance.

In every case of unjustified absence of the employee from work, the employer is entitled to deduct from the remuneration owed to him or her as many hourly or daily wages as the hours or days of absence, given that under Article 648 of the Civil Code (AK), salary is owed only insofar as work is provided.

We set out below indicative court rulings which characterised an employee’s absence from work as unjustified and consequently as termination of the employment contract through his or her fault (note: no severance is paid, because there is no dismissal but termination of the employment contract through the employee’s fault).

extension by 5 days of unpaid leave already granted, without informing or notifying the employer
unjustified absence for 4 months
absence from work for 22 days due to allegedly minor illness of the spouse
absence of the employee for 10 days after his or her leave, while spreading word that he or she would not return to work
absence of the employee for 3.5 months due to a serious injury of his or her children, without notifying the employer of any intention to return to work
unjustified absence of a trade unionist for 1 year
case of an employee who was unjustifiably absent from work for 3 days
case of an employee who, following a non-existent termination of his or her contract, was called upon to return to work, but the employee did not return
unjustified absence following illness
case of an employee who invoked an illness which was not real
long-term absence of an employee who was receiving a salary without always being assigned work
case of an employee who was dissatisfied with the employer (selection of director), performed his or her work defectively and subsequently failed to attend work without notifying the employer
case of refusal of an offer of employment on more favourable terms
definitive refusal to perform work and absence of the employee for a long period of time, where this is contrary to good faith

Court rulings holding that the employee’s absence does not amount to termination of the employment contract through his or her fault

case of an employee who was absent from work for 5 days due to a serious family problem, regardless of whether or not he or she informed the employer
case of absence of an employee from work for
imperative and unavoidable reasons (family problems) of which he or she informed the employer
long absence not due to illness but to a serious cause (serious illness of the mother), with notification to the employer
case of three-month absence without leave, following six months of sick leave for the purpose of the employee’s surgery, with 20 years of service.

See also the article Termination of Employment Contract
See also the article Severance Pay
See also the article Social Insurance – Pensions
See also the article Modification of Employment Terms
See also the article Withholding of Labour
See also the article Annual Statutory Leave
See also the article Employee Remuneration
See also the article Additional Hours – Overtime
See also the article Employer Obligations

FREQUENTLY ASKED QUESTIONS ON UNJUSTIFIED ABSENCE OF EMPLOYEE

1. The employer claims that I resigned due to absence. What am I facing?

The employer is attempting to present the absence as a “tacit termination” by the employee, in order to avoid paying the statutory severance. However, there is no law specifying a particular number of absence days after which the contract is automatically terminated. The court examines each case separately, considering the cause of the absence, its duration, whether the employer was informed, the years of service and prior conduct, on the basis of Articles 200 and 288 of the Civil Code (AK) (good faith and commercial morality). Many cases of absence due to illness, family problems or medically documented reasons have been held not to constitute resignation, and the employee retains his or her rights.

2. What can I do if I am deemed to have abandoned my employment?

The employee files a lawsuit before the competent Single-Member Court of First Instance, seeking a declaration that the contract was not terminated through his or her own fault, and an award of statutory severance, together with unpaid wages, allowances and compensation for unused leave. Where the absence is justified by a serious cause (illness, hospitalisation of a child or parent, serious family problem), it suffices to prove the cause and that the employer was informed. In parallel, a complaint is submitted to the Labour Inspectorate, which may serve as a first step towards an out-of-court settlement before judicial proceedings.

3. How much time do I have to claim severance pay?

The claim for severance pay is subject to a six-month statute of limitations from the time it became payable. This is a short period within which either a lawsuit must be filed or actions interrupting the limitation period must be taken. Claims for unpaid wages are subject to a five-year statute of limitations, while labour disputes follow an expedited procedure and are typically concluded at first instance within one to two years, depending on the court’s caseload.

4. What documents do I need to prove the justified nature of my absence?

You will need the employment contract, payslips and social security stamps evidencing length of service, as well as any evidence of the cause of the absence: medical certificates, hospitalisation confirmations, discharge papers, family status certificates. Proof that the employer was informed is essential — SMS messages, email, Viber messages, witnesses, extra-judicial notices. Also useful are any internal employment regulations (where applicable), prior performance evaluations and correspondence demonstrating a sound employment relationship before the absence.

5. What are the chances of success of my lawsuit?

The outcome depends on the factual circumstances. Where the absence is due to illness, pregnancy, post-natal recovery, a serious family reason or has medical documentation, the prospects are significant, particularly if the employer was informed and there is long service without prior issues. Courts have ruled in favour of employees even in cases of three-month absence following surgery, absence due to a parent’s serious illness or imperative family reasons. Conversely, the prospects diminish where there was no notification, the cause cannot be proven, or the employee expressed an intention not to return.

6. What is the role of the lawyer in such cases?

The lawyer first assesses the justified nature of the absence and the sufficiency of the evidence, sends an extra-judicial notice that interrupts the statute of limitations and secures the employee’s position, represents the employee before the Labour Inspectorate, and files a lawsuit for severance pay and unpaid wages. In court, the lawyer rebuts the claim of tacit termination by invoking the principles of good faith, length of service and notification given. The Law Firm ZIAMPARAS D. & ASSOCIATES handles labour disputes with the aim of safeguarding the employee’s severance and remuneration.