★Brief
Zhang joined a porcelain company in Shanghai in October 2012 to engage in warehousing and delivery work. It was agreed in the labor contract that a written application was required for leave, and that the company could immediately terminate the labor contract for absences of more than three days.
The Chinese New Year 2020 is the busiest time of the year for the company. In order to ensure normal production and sales, the company circular emphasizes that in principle no time off is allowed. Leave of absence must be approved by the general manager, otherwise it is considered as absence from work.
Zhang applied to the company for leave of absence in order to attend his daughter’s wedding and obtained approval from his supervisor, department manager and deputy general manager, but was refused by the general manager. Fearing that he would miss the auspicious time, Zhang left his leave slip at the reception desk and departed for his hometown.
On 10 February 2020, when Zhang returned to the company, he received a notice of absence from work to terminate labor relation. Zhang thought that according to the company’s daily management system, leave of absence would be approved by the company’s deputy general manager and should not be considered as absenteeism, so he applied to the labor arbitration committee and later to the court.
★The verdict
The court held that, although Zhang had acted improperly, the employer should consider whether the leave taken by the employee was reasonable in the exercise of its management rights. When terminating the employment relationship, it should also consider whether the employee had malice or gross negligence.
In this case, Zhang took leave on the grounds that his daughter was getting married in the Spring Festival, which was justifiable. The company should be aware of his return home for the wedding, so Zhang is not yet a serious violation of the rules and regulations of the situation. In the case of no follow-up communication, the company was dismissed for unexplained absenteeism, which was too harsh and inappropriate, and was an illegal termination of the labor contract.
★ Comment of Lawyer Tang
This case is a dispute arising from an employee’s unapproved leave and the employer’s unexplained absence from work.
According to Article 39 of the Labor Contract Law, the employer may terminate the employment contract if the worker has one of the following circumstances: …… (2) serious violation of the rules and regulations of the employer”, the employer has the statutory right to terminate the employment contract if the employee is absent from work for no reason and seriously violates the rules and regulations of the company. The employer does have the statutory right to terminate the employment contract immediately if the employee is absent from work without reason or in serious breach of the company’s rules and regulations, but the employer should comply with strict substantive and procedural requirements when exercising the statutory right of immediate termination.
The employer should first establish the facts of the disciplinary offence and define whether there was malice or gross negligence on the part of the employee. Secondly, it needs to determine whether the conduct is provided for in the rules and regulations that have been established through a democratic process. Finally, it should determine whether the disciplinary offence is of such a degree that the employment contract should be terminated immediately, and keep the relevant evidence.
In addition, prior notice should be given to the union before termination, the union’s views should be heard and a final written decision should be effectively served on the employee.
The employer should exercise the right of immediate discharge judiciously to avoid infringing the legitimate rights and interests of the workers and thus avoid unnecessary legal disputes.
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