Companies must formalize job abandonment by telegram

Labor Court ruling reinforces that companies must send telegrams to establish abandonment of employment and avoid labor convictions

The lack of formal notice can invalidate dismissals for job abandonment and result in significant financial losses for companies. This was the ruling of the 3rd Labor Court of Santo André (SP) when it ordered a company to reinstate a former employee and pay R$30,000 in moral damages, in addition to other labor-related benefits.

The court ruling found the dismissal for job abandonment invalid, as the employer failed to provide proof of sending a formal notice by telegram or other documented means demonstrating an attempt to contact the employee prior to termination.

Subjective element was not proven by the company

For job abandonment to be established, two elements must be proven:

• The employee's prolonged and unjustified absence;

• The clear intention (subjective element) not to return to work.

According to the judge in the case, the company failed to demonstrate the subjective element, that is, the employee's intention to abandon her job, as it failed to formally notify her of the need to return to work.

Reinstatement and compensation for moral damages

Given the lack of formal communication, the Labor Court ruled that the company wrongfully assumed abandonment and ordered:

• The employee's reinstatement to the workforce;

• Payment of compensation for moral damages in the amount of R$30,000;

• Payment of labor benefits owed during the period of absence.

The judge also highlighted the possibility that the absence was related to health issues, which requires cautious action on the part of the employer, especially in cases of medical treatment or hospitalization.

Employer's obligation: formally summon the employee

Labor law reinforces that the responsibility for contacting the employee lies with the company. This means that, before characterizing abandonment, the employer must take all possible measures to attempt to reestablish the employment relationship and confirm the absence of valid justifications.

The summons should preferably be sent by telegram with return receipt requested, but it can also be sent by registered mail, email with read receipt, or other means that allows proof of delivery and receipt.

Recommended procedures to avoid legal risks

To avoid unfavorable decisions and court rulings like the one mentioned, experts advise companies and Human Resources departments to follow these practices:

1. Send a formal, documented notice

As soon as an employee's unjustified absence for a prolonged period (usually more than 30 days) is identified, the company must send a formal summons requesting the employee to return to work or present justifications. Sending a formal notice by telegram with AR is the most legally acceptable method.

2. Set a deadline for return

The document should establish a reasonable deadline for the employee to respond, usually between 5 and 10 business days, and outline the consequences of failure to appear.

3. Record all contact attempts

It is essential to keep a copy of the summons, receipts, and, if applicable, any response from the employee. These records serve as evidence in any labor lawsuit.

4. Verify any medical condition

If the absence is related to illness or health problems, the company must proceed with caution. Ideally, you should request updated medical certificates and, if necessary, refer the employee to the company's or health plan's medical service.

Situations that do not constitute abandonment of employment

Not every prolonged absence constitutes abandonment. The Superior Labor Court (TST) has already established the understanding that absence, in itself, does not justify dismissal for abandonment if there are indications that the employee wishes to maintain the employment relationship.

Common cases in which absence does not constitute abandonment:

• Leave-offs due to health problems, even if a medical certificate was not immediately presented;

• When the employee attempts to justify the absence, even informally;

• Situations in which the employer did not attempt to contact the employee prior to dismissal.

Impact for companies and accountants

Failure to properly comply with legal procedures can result in reinstatement, high severance payments, and unexpected labor liabilities. Therefore, accountants, lawyers, and HR professionals should advise their clients and companies on the need to formalize the process and maintain supporting documentation.

Furthermore, it is essential to review internal absence and leave policies and train HR teams to handle this type of incident.

Defining job abandonment requires objective, documented proof of the employee's absence and their intention not to return. A simple absence for a prolonged period without formal notice is not sufficient to justify dismissal. Sending a telegram or equivalent notification is essential to ensure legal certainty for the company.

Companies should standardize formal notice procedures, record all communications, and act cautiously in cases of possible sick leave. Preventive action reduces risks and avoids unfavorable court decisions.

Source: Contábeis