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Ghosting at the workplace – what to do if we are not ghostbusters?

 

An increasingly common issue in private life is the phenomenon of ghosting, where typically one party breaks off a relationship with a friend or couple by disappearing from the other party's life without explanation or warning. Using legal jargon, we could say that the ghosting party, i.e. the abandoning party, signals the end of the relationship by becoming a "ghost" as an implied act. This behaviour leads to a state of uncertainty and discomfort for the abandoned party, until they realize that the ghosting person is not coming back. But even then, it's mostly just the uncertainty that goes away.

Ending a relationship in this way is becoming common not only in private life, but unfortunately, the phenomenon is spreading contagiously in the world of work as well. There are countless cases of employers disappearing without feedback during the selection process, or where employees simply end their employment by not coming back to work. In this article we look at the latter case.

The Labour Code sets out the basic obligations of employees, including the obligation to be present at the workplace for work. The illegal nature of the disappearance also stems from this obligation of the employee, because according to the law, the employee is obliged to be at the workplace or at another place designated for work at the start of work. According to judicial practice, this obligation includes not only the mere appearance, but also the knowledge of this of the manager authorised to give instructions. A worker who arrives secretly and spends his/her working time unnoticed does not fulfil this obligation - the experts of act Bán & Karika Attorneys at Law, dr. Dóra Amina Szauter and dr. István Solt presented.

It may also happen that the employee does not show up at work because he/she is prevented from attending for some compelling reason. For example, an accident involving the employee or, according to legal practice, his/her partner can be considered as such a reason.

Of course, it is not enough to be present at the workplace, then, in order to fulfil the obligation of availability as an additional obligation arising from the employment relationship, you must also remain at the workplace for the entire duration of the working hours, for the purpose of working.

So, in the case of ghosting, the employee is essentially failing to comply with these two important obligations and, as with everything in the legal world in general, such failure can have serious consequences.

Ghosting can be interpreted in two ways from the employer's point of view. One way of interpreting the disappearance of an employee is that ghosting can be interpreted as a wrongful termination of employment, because after a certain period of time the employer can reasonably conclude that the employee will not return to work. However, before drawing this conclusion, the employer must carry out a detailed investigation to identify the specific circumstances of the unjustified absence. In the framework of this investigation, the employer is obliged to visit the employee at his/her known address and extensive cooperation is expected from the employer in order to enable the employee to justify his/her absence, the two experts added.

One employer tried to evade this obligation of the employer by introducing a procedure in the employment contract, which they called the "stragglers’ procedure", whereby the employee's failure to send the employer the documents proving the legality of his/her absence within 15 days of the start of his/her absence was interpreted as a termination of employment by the employee’s implied conduct . In addition, the termination of the employment relationship by a straggler employee in this way was also declared unlawful in advance. It was only a matter of time before the procedure would stand the test of a court case. In the case, the court ruled that the clause in the employment agreement providing for the stragglers’ procedure was also in breach of the fundamental provisions of the Labour Code and therefore null and void, and that ghosting of the employee could not be considered in general as a termination of employment without cause, since the employer must examine the specific circumstances of the employee's unjustified absence in each case in order to be able to take a reasoned position on the matter.

Of course, employers' concerns should also be taken into account and their interests protected, as ghosting is not only annoying and frustrating, but can also harm the employers' legitimate interests in the organization of work and the planning of their economic activities, in some cases even going beyond the limits of normal business risk. This protection is ensured by the sanctions provided by the Labour Code and the possibility of termination without notice, which is another interpretation of employee ghosting.

From the employer's point of view, the employee's unjustified absence may constitute grounds for termination without notice, as it constitutes a wilful breach of a material obligation arising from the employment relationship. According to the case law, several hours of unauthorized absence from work during working hours is already grounds for termination without notice.

According to the Labour Code, if the employee terminates his/her employment wrongfully, the employee shall be liable to pay compensation in the sum of the absentee pay due for the notice period when the employment relationship is terminated by the employee, and the employer may also claim damages from the employee, subject to the limit that the sum of the two may not exceed the amount of the employee's absentee pay for twelve months. In the event of the employee having terminated his/her fixed-term employment relationship unlawfully, the employee must pay compensation in the sum of the absentee pay due for the time remaining from the fixed period, up to three months’ absentee pay at most.


In summary, it is possible for an employer to take action against a ghosting employee, even if not by using ghostbusters. However, care should be taken when determining the nature and circumstances of the disappearance, as it is possible that the employee may have had a valid reason for remaining absent from work, even for a longer period of time - concluded dr. Dóra Amina Szauter and dr. István Solt of act Bán & Karika Attorneys at Law.

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