★Nutshell
Young Chen worked for a consultancy company from Jan 2008 and signed the labor contract and all kinds of rules and regulations on entry.
On early April, 2010, Young Chen need to stay in hospital for operative treatment for uterine fibroid, therefore applied sick leave to the company. After approval, Mr Chen never showed up at work. Due to the absence of sick leave certificate and other related material, the company asked her for several times. Afterwards, young Chen handed in a one-month sick leave suggestion and sickness certificate, etc. afterwards, Chen handed in the sick leave notice twice and the company accepted. But the last time, the company informed Chen that the third sick leave was received. According to the company rule, she should apply to the department head first, without the approval, the leave would be considered absence. The company did not approve this time and required Chen to complete the procedure and go to the assigned public hospital for review. And the leave would be granted after approval. Without the procedure, it would be considered as absence. Afterwards, Chen negotiated with the company but no agreement was reached.
On July 1st, 2010, the company issued the termination notice to Chen on the ground of breach the leave application rule and ignorance of reminders, resulting in major damage and bad affect. Therefore termination was effective immediately on the base of absence for accumulatively 6 days. Chen receive the notice on July 2nd.
Chen believes the termination is illegal, therefore raises the labor arbitration claiming for damages.
★Issue
The issue of this case lies in the reasonability of absence affirmation in the handbook and the termination by the company based on that.
The company specified in its handbook that formality shall be gone through to take a leave, therefore Chen met the requirement of absence.
Chen thinks she applied for leave with the in-hospital permit and gets approval, in the mean time she asks to complete the procedure when go out of the hospital. She stays at home as the doctor suggests and have several sick leave notice and hands in regularly, therefore the termination is illegal.
★Judgment
The arbitration holds that the company did not raise any dissent when Chen handed in the sick leave notice and sickness not after she got out of the hospital, therefore the arbitration thinks she already complete the reasonable application. Through the company rule provides that the application shall be done one week ahead with formal application to the department head to get approval. The sickness is unpredictable as she cannot know about the sick leave in advance and apply ahead. And to require formal application during sick leave is unreasonable, as the approval is not needed. Chen informed the company about the sick leave in the other way which shall be considered as reasonable and the rule is too strict. Chen is granted for leave by the professional medical institute therefore her claim for damages is supported.
★Comment by Lawyer Tang
As we all know the Labor Contract grants the employer to establish its own rules and regulation which most employers do according to their operation and the legality and reasonability.
Once the labor dispute taken into justice procedure involves the application of company rules, the jurisdiction department would review on the legality and reasonability which is the issue of the case.
The employer has the right to make rules on vacation system of employees, but there is boundary for the right which lies on the reasonability.
The vacation system usually is set with an approval requirement before annual leave, personal affair leave, etc to require an approval prior to leave otherwise leave would be taken as absence from work. In this case, sick leave is kind of special, usually the employer can require sick notice and sickness note etc and too much limitation shall be avoided regarding to the convenience of the sick employer.
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