The recent labor law (:5053/2023) changed -among other things- the provisions regarding the unjustified absence of an employee, which may result in his resignation. We have already been concerned with the recent changes to the resignation of an employee. Following these changes (: art. 23 l. 5053/2023), the long-awaited (:no. 113169/18.12.2023) Ministerial Decision of the Minister of Labor and Social Security ( Government Gazette B’ 7421/28.12.2023 ). This specific MD determines, among other things, the procedure regarding the digital declaration for the resignation of an employee. For the relevant procedure and related concerns, the present article!
The Dissolution of the Employment Relationship
The employment contract is terminated:
(a) by agreement between employer and employee,
(b) by dismissal of the employee by the employer (termination of contract),
(c) by resignation of the employee (voluntary retirement),
(d) by death of the employee or their retirement,
(e) by the employer being placed in special liquidation and, lastly,
(f) by any confusion in the same person of the capacities of employer and employee.
In particular, fixed-term employment contracts are also terminated upon the expiry of their contractual duration.
However, there is also the possibility that the employee is absent from work unjustifiably and arbitrarily. Such a choice/behavior of theirs may be considered, under certain conditions, as a termination of their employment contract. In order to assess the employee’s absence as such, specific conditions must be met, which are analyzed below.
Voluntary Resignation of an Employee | Announcement
The employer was obliged (also under the pre-existing legislative regime) to announce, by electronic submission of the relevant forms (which was provided for in the previous, with no. 40331/13.9.2019 MD, in the ERGANI II platform), any case of resignation of an employee. Also, any case of automatic termination of the probationary period or consensual termination of the employment contract, such as voluntary exit or termination of an indefinite employment contract or expiration of a fixed-term or project employment contract. This announcement should take place no later than four (4) working days from the day of the employee’s departure or termination of the indefinite employment contract or expiration of the fixed-term employment contract or project or any other case of termination or expiration of the employment contract (art. 320 §1 of Presidential Decree 80/2022-after the amendment of art. 23 of Law 5053/2023).
The recent-as above (under no. 113169/2023) MD differentiates the pre-existing, immediately above, data. First of all, now, wherever in the aforementioned the word “form” is referred to, it is replaced by the word “declaration”. Furthermore, this specific, recent, MD lists among the digitally submitted “declarations” and, among others, the Digital Announcement of termination/expiration of an employment contract. It merges elements of the forms E5 (:Announcement of voluntary employee departure), E6 (:Termination of an indefinite-term employment contract with or without notice), E7 (:Certificate – Employer’s Declaration for fixed-term or project contracts). Specifically, among the cases of termination/termination of the employment contract are the following cases:
(a) voluntary resignation and
(b) voluntary resignation after notice.
Explicit Resignation of an Employee
The (employer’s) announcement of the employee’s resignation is necessarily accompanied by an electronically scanned form signed by hand by the employer and the employee. Alternatively, by a document bearing their electronic signature or a document digitally certified by both through the Single Digital Portal of Public Administration (gov.gr – art. 320 §2, presidential decree 80/2022).
Silent Resignation of an Employee (After Notice)
Concerns, however, arise regarding the case of an employee’s long-term unjustified absence and, for this reason, their resignation after a relevant declaration by the employer.
The provisions of the law
According to the current legislative framework (: art. 23 of Law 5053/2023-as codified by art. 320 §3 of Presidential Decree 80/2022), the employee’s unjustified (arbitrary) absence from work for more than five consecutive working days may be considered as termination of the employment contract on their part. It is assumed that the employer has given them notice that five more consecutive working days have passed.
The said notice:
(a) is posted on the ERGANI II platform and
(b) is proven in any appropriate written manner. At a procedural level, the employer is obliged, on the working day following the second five day period, to announce the employee’s resignation to the ERGANI II platform, without requiring the employee’s signature.
The predictions of the recent Ministerial Decision
The above, recent, MD (which comes into force on 1.3.24) somewhat – unfortunately, however, differentiates the data in relation to the provisions of the law.
(a) Submission of a statement of responsibility for the nuisance (and not the nuisance itself)
In the event of unjustified (arbitrary) absence of the employee from work for a period of more than five consecutive working days, the employer submits to the ERGANI II platform electronically a solemn declaration regarding the employee’s notice (in accordance with the first paragraph of paragraph 3 of article 320 of Presidential Decree 80/2022).
Therefore, a first, important – in excess of the law – differentiation/bureaucratic burden should be noted here: the employer does not post the employee’s notice itself (as explicitly provided for in the relevant provision) but, on the contrary, a declaration by them (the employer) that they gave the notice in question.
(b) Deadline for submitting a declaration for the resignation of an employee
In the event no action is taken within five (5) consecutive working days from the submission of this responsible statement regarding the notice, the employer is obliged, on the next working day, to submit the employee’s digital declaration of resignation without requiring the signature by the employee.
Here, therefore, we have the second differentiation. The Ministry of Health changes, in relation to the provision of the law, the point in time from which the period of five (5) consecutive days begins.
Specifically, the legislative regulation (: no. 320 §3 PD 80/2022) provides that a period of five consecutive working days must elapse from the mandatory notice of the employee by the employer. On the contrary, the MD provides that a period of five consecutive working days must elapse from the (electronic) submission of the solemn declaration of notice by the employer. At the same time, there is no obligation (or possibility), for example, of the employer, pursuant to which the posting of the notice must (or will be possible) take place on the same day as the notice.
(c) The problem and the dilemma.
The above (legislative) excesses of the disputed Labor Code create, among other things, a significant problem. If the posting of the employer’s solemn declaration regarding the notice takes place, for example, the day after the employee’s notice (as the Labor Code requires), another day is added to the (already unreasonably extended/legally prescribed duration) for the completion of the voluntary resignation process.
The ambiguity, however, regarding the individual times of the voluntary withdrawal process creates legal uncertainty.
All the more so since the employer is required to apply the law (five days from the notice) or the Labor Code (five days from the day after the submission of the solemn declaration of notice). And if, despite hope, they choose wrongly and is declared overdue, the employment contract is considered to have been terminated by an irregular termination on his part (art. 320 §4 of Presidential Decree 80/2022) – with all, of course, the attendant, adverse consequences.
We already mentioned in our previous article about the voluntary retirement that the recent law simplified and made more rational the pre-existing relevant regulations. However, it did not address problematic situations that, on a practical level, can be addressed: long, for example, unjustified (but not ten days continuous) absence of the employee from his work. The maintenance of such a serious pending matter in an employment relationship for such a long time is obvious, ultimately, against the business itself and its viability..” The authorized by law (more precisely: exceeding the law) MD not only (unfortunately) deviated from the legislative provisions (: posting the notice vs posting a responsible statement about the notice) but is also practically expected to extend for another day(!) the already, unjustifiably long, deadline for addressing a problematic situation. We have already suggested that a three-day, only, (proven as) unjustified absence of the employee would be, in any case, sufficient for the termination of the employment relationship. We therefore justifiably look forward to the next, relevant, legislative regulation. Such a legislative regulation is already becoming more than necessary.-
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