Abandonment of Post and Gross Misconduct: What Employees Should Know

Imagine for a moment: you own a flat in Périgueux, you rent it to a tenant who, after a dispute, decides to leave the premises without notice, leaving the keys under the doormat. You ask yourself: 'Does he have the right to do that? Can I withhold his security deposit?' This everyday situation finds a surprising echo in a decision of the Court of Cassation from 1970, which concerned… a ground mechanic for Air-Algérie. But what exactly does that change?

The question every employer, and every landlord by analogy, asks is that of the unilateral termination of the contract. Who can decide to end the contractual relationship? And above all, what are the financial consequences? This decision answers with relentless clarity: whoever abandons their post without authorisation commits gross misconduct, and loses all right to compensation.

In short, if you are in a situation where the other party 'walks out', know that the judges may consider that it is they who caused the termination, and that they must bear the consequences. Let's dissect this decision together.

The Facts: A Story Like Any Other

Mr X, a ground mechanic for Air-Algérie, worked in Lyon. In 1965, his employer regularly transferred him to the Orly site, near Paris. Mr X complied, but very quickly encountered difficulties: he could not find accommodation at the same price conditions as in Lyon. After only four days of absence (which is less than the grace period to be declared a resigning employee by default), he decided to resume his former post in Lyon, without asking his employer's permission. He sent a letter on 22 November 1965 to inform him of his decision.

The company, for its part, noted the termination of the employment contract by the employee's act. It did not formally dismiss Mr X, but merely noted his abandonment of post. Mr X then brought the matter before the labour court (the competent court for labour disputes) to obtain notice pay, redundancy pay and damages (sums intended to remedy harm) for unfair dismissal. He lost at first instance and on appeal. He appealed to the Court of Cassation (that is, he asked the Court of Cassation to verify whether the law had been correctly applied).

Mr X's arguments? He argued that the transfer was not regular because it did not provide for a housing guarantee. He considered that his four-day absence did not justify termination without compensation. But the Court of Cassation did not follow him. In other words, it validated the reasoning of the lower courts.

The Court's Reasoning — Analysed

The Court of Cassation, in its judgment of 10 June 1970 (number 69-40.275), laid down a simple principle: when an employee abandons his post without authorisation, he commits gross misconduct. Gross misconduct is defined as a breach of the employee's contractual obligations of such seriousness that it makes his continued employment in the company impossible, even during the notice period (the period between the announcement of departure and the actual departure).

The lower courts (the labour councillors and the court of appeal) had found that Mr X had been regularly transferred. He had accepted the transfer by reporting to Orly. By resuming his former post without authorisation, he voluntarily abandoned his new post. The Court of Cassation approved this reasoning: the termination of the contract was the employee's doing, not the employer's. Consequently, the employer was not required to observe the formalities of disciplinary dismissal (such as summoning to a preliminary interview or notifying a dismissal letter). He could simply note the termination.

What few people know is that this decision is based on the articles of the Labour Code relating to the termination of the contract, but also on Article 1134 of the Civil Code (now 1103 and 1104) which provides that legally formed agreements are law to those who have made them. In short, the employment contract must be performed in good faith. Abandoning one's post without legitimate reason is a violation of this obligation.

However, be careful: this decision is not a reversal of precedent. It confirms a consistent line: gross misconduct can result from an abandonment of post, even of short duration, as soon as the employee clearly manifests his intention no longer to perform the contract. undefined, I have come across cases where employees, after a simple disagreement, leave their work and return a few days later apologising. But the judges are often strict: abandonment, even brief, can be classified as gross misconduct.

What This Changes for You — Concretely

Landlord? Imagine that your tenant in Bordeaux leaves the flat overnight, without three months' notice, and stops paying rent. You are entitled to consider that it is he who terminated the lease. You can claim the unpaid rent up to the end of the notice period he should have respected, as well as the costs of reinstatement if the property is damaged. This decision supports you: the unilateral termination by the tenant is a fault, and it releases you from any obligation to rehouse him or pay him compensation.

Tenant? If you are tempted to leave your home without respecting the notice period, know that you risk having to pay rent until the end of the notice period, and possibly damages if the landlord suffers additional harm (for example, if he has to cancel planned works).

Employer? If an employee abandons his post, you are not obliged to dismiss him. You can simply note the termination. This saves you the formalities of dismissal and the payment of compensation. But be careful: if you let too much time pass or if you accept late explanations, you could be considered to have waived the right to invoke gross misconduct.

Example with figures: an employee in Périgueux with 5 years' seniority and a salary of €2,000 per month abandons his post. If he had been dismissed without real and serious cause (non-serious misconduct), he would have been entitled to a redundancy payment of around €1,000, a notice payment of 2 months (€4,000), and possibly damages for unfair dismissal (at least €3,000). That is nearly €8,000. With the abandonment of post classified as gross misconduct, he receives nothing. The employer saves this sum.

Four Tips to Avoid This Type of Dispute

• Before any transfer or change of post, formalise the employee's agreement in writing. If the employee refuses the transfer, this may be a ground for dismissal, but not an abandonment of post. Obtain a clear written document.
• If an employee no longer shows up for work, send him a formal notice (a registered letter with acknowledgement of receipt) to justify his absence. Wait a few days. If he does not respond or if he announces that he will not return, you can note the termination at his fault.
• For landlords: have the inventory of fixtures on departure certified by a bailiff if the tenant leaves abruptly. This will allow you to prove the abandonment and any damage.
• Do not wait too long to react. A delay of a few weeks may be interpreted as tacit acceptance of the situation. Act quickly.

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Further Reading: Related Case Law and Developments

This 1970 decision is part of a consistent line of authority. For example, a judgment of the Social Chamber of the Court of Cassation of 20 February 1991 (no. 89-41.785) held that an abandonment of post characterised by the employee's absence for several days without justification constitutes gross misconduct. More recently, in a judgment of 15 December 2021 (no. 20-18.541), the Court specified that even if the employee is on a trial period, the abandonment of post can be gross misconduct depriving him of any compensation.

The trend is clear: the courts are strict. Gross misconduct does not require an intention to harm; a simple abandonment, even motivated by personal difficulties (such as housing), suffices. However, be careful: the Court of Cassation requires that the abandonment be voluntary and unequivocal. If the employee is ill and cannot give notice, or if he has legitimate reasons (imminent danger), gross misconduct may be ruled out.

Checklist Before Acting

1. Have I properly noted the abandonment of post? (unjustified absence, departure without warning)
2. Have I sent a formal notice? (registered letter with AR, allowing a response time of 2 to 3 working days)
3. Has the employee responded or indicated his intention to return? If so, gross misconduct may be ruled out.
4. Have I respected the time limit for reaction? (ideally less than 15 days after the abandonment)
5. Have I consulted a lawyer before noting the termination? To avoid the risk of reclassification as dismissal without real and serious cause.

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