Is Part-time Job during Sick Leave a Major Breach?

Nutshell

Mr Hou works as a salesman in a commercial company since March, 2010. The company signed an open contract with Mr Hou in April, 2014. Since March, 2015, Mr Hou begin to take long term sick leave and the company paid the salary according to the legal standard.

On July, 2015, Mr Hou told his colleague Mr Xu that he worked for a consulting company during sick leave as a webmaster. Besides the sick leave payment, he also got an income of more than six thousand yuan per month. The commercial company learnt the news and then made a research in the consulting company and found it was true. The company then terminated the labor contract on the base of material breach of company rules.

Mr Hou thinks the termination is illegal for that part time job is not a material breach of company rules. He brings up an application to the Labor Dispute Arbitration Committee asking for the illegal termination damage.

Issue

Is part time job during sick leave a major breach?

Mr Hou thinks it is not major breach of company rules in spite of part time work, as Art 39 of Labor Law provides that An Employer may terminate an employment contract if the Employee: (4) has additionally established an employment relationship with another Employer which materially affects the completion of his tasks with the first-mentioned Employer, or he refuses to rectify the matter after the same is brought to his attention by the Employer. Since the company cannot prove his part time work affects his job or he refuses to rectify after brought to him. It is illegal to terminate the labor relation.

The company defends that the part time work is unusual for Mr Hou has been cheating the company by sick leave to get two incomes, which seriously betrayed honesty policy and professional morality, therefore there is no wrong in termination.

Judgment

The tribunal didn’t support Mr Hou’s application due to the behavior is considered cheating that seriously breached profession morality and public discipline. Since the rule of company is made through democratic process, which prescribes cheating as major breach, there is no wrong in termination.

Comment by Lawyer Tang

This is a case on termination for part time job during sick leave.

Art 39(4) of the Labor Law refers to the ordinary part time work behavior. The law itself doesn’t restrain part time job in leisure time considering no effect on own work. Secondly, the employee shall quit the part time work if the employer brings this matter to him. Otherwise the employer can terminate the labor relation.

But the issue is not about Mr Hou’s involvement in part time job or breach of Art 39(4). The reason of the commercial company to terminate is Mr Hou take long-term sick leave for sickness while devote in second profession to get double payment. It’s a kind of cheating that against the professional morality. Therefore it is reasonable and lawful to terminate according to company rules. Early know today why had, not being wronged.

We call the behavior “bath in sick leave”. It is becoming a big trouble in human resource management for the employees would take different measures to bath in sick leave. Several classifications in practice would be: (1) knowing no extension on expiry of contract; (2) avoidance of work after quarrel with superior; (3) outdoor activities; (4) part time job. For whatever reason, the behavior is against honesty and morality. We don’t advocate employees this to gain advantages, which once found, employees shall face the penalty of termination.