Nutshell
Dai entered into a three-year labor contract on September, 2015 with a Shanghai financial service company as an company network administrator. He signed the Employee Handbook on the entry day which provides that to ask leave, the employee shall fill in the related Leave Application Format to the General Management Department. For sick leave, the employee shall hand in sick leave documentation. In case of a sickness emergency, the employee cannot go to work on time, he shall inform the director of the apartment by telephone or other method as soon as possible in the same day. The employee shall fill in the Leave Application Format on the first day back to work and hand in sick leave documentation. The Employee Handbook also provides that the company can give serious written warning for those not go through the application procedure and terminate on three-day absenteeism.
Dai call the company on February 1, 2017 that he is in hospital for cholecystitis. Dai is back to work after a month without attending to work. The company ask several time for the sickness documentation and medical materials, but Dai refused by many reasons. After several notices to warn Dai that his sick leave would be taken as absenteeism in the given time, Dai still didn’t hand in any materials.
Afterwards, the company terminated the labor contract with Dai. Dai raise labor arbitration claiming illegal termination damage as he holds sick leave cannot be taken as absenteeism.
Issue
Is the termination by the company legal?
Dai holds he is in hospital for sickness without handing in documentation. According to the Employee Handbook, the company can only give written warning but not termination for those who not go through the procedure.
The company holds that it’s not about procedure. The company informed Dai many times of handing documentation, otherwise he would be taken as absent. As no result after many times of warnings , the company cannot make sure about the reality during the one-month absent time .
Judgment
The arbitration tribunal holds that the company has fulfilled the duty of notice, but Dai chose not to hand in the sickness documentation with clear knowledge that without documentation he would be taken absenteeism, therefore he shall be responsible for the negative result. To cooperate with the leave application procedure is the duty of care on the employee. Therefore the termination is legal, the company shall not pay the damage.
Comment by Lawyer Tang
This is a case on the affirmation of absenteeism arising from sick leave.
The Labor Law does not provide express regulations on sick leave application, usually the company provide the regulations in company rules. Medical report and sick leave notice are the usual references.
In this case the company prescribe the related procedure of sick leave application in the Employee Handbook, but Dai refuse to hand in sickness documentation from beginning to end, leave the company no clue for his whereabouts during the absent time. Dai refuse to cooperate with the knowledge of the result after many times of warnings. In the end, the company has no choice but to terminate him.
This case is different as Dai never hand in documentation even after warnings. In reality, some are the documentations do not meet the requirements or no application in advance. In the above cases, we don’t suggest the employer to terminate directly for absenteeism. If the documents handed by the employee proved the sickness situation during the leaving time, but not in line with the requirements, absenteeism cannot be affirmed, which the company can only deal with breach for not fulfill the procedure. If as Dai, the employee refuses to give any documentation after clear knowledge about the result. In such case, absenteeism can be affirmed as the employee cannot give reasonable explanation.
Therefore our suggestion for employees is to go through the procedure for sick leave according to the company requirements and hand in sick leave in time. Negative result may come if not hand in on purpose.
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