- If an employee asks for leave without explaining the reason, does the company have the right to refuse?
- Can an employee take a leave of absence, can a family member apply for it?
- If an employee is placed under administrative detention and asked his family to take leave on his behalf, can the company refuse and dismiss him on the grounds of absenteeism without stating the reason?
Recently, a labor dispute case has spread in the HR circle. The employee was detained for 10 days, dismissed by the company, and actually claimed 140,000 yuan from the company. What's going on here?
Things go by
Lao Shao, born in 1978, joined a labor service company in Shanghai in 2010 and was subsequently assigned to work in a factory under a group company in Shanghai.
On February 3, 2021, shortly after Lao Shao went to work, several plainclothes police officers came and summoned Lao Shao and asked him to assist in the investigation. Lao Shao asked his superior, Supervisor Deng, for a day's leave and left the company with the police.
From that day on, Lao Shao "evaporated in the world". No one in the company could contact him.
Instead, Lao Shao's mother, on February 3, 4, 6 and 10, contacted Supervisor Deng by phone to ask for leave for her son.
Supervisor Deng asked her about Lao Shao's situation and the reason for the leave, and Shao's mother was always silent. Supervisor Deng repeatedly stated that he could not ask for leave by phone or on behalf of Lao Shao, but he did not wait for any news from Lao Shao.
On the company's side, because of the "disappearance" of Lao Shao, the production work encountered certain troubles. If Lao Shao takes a day or two off, everyone will come over. However, after waiting day after day, Old Shao had no news at all, but he was anxious to put Director Deng in a hurry.
In order not to affect the work arrangement of the factory, in the case of not being able to contact Lao Shao himself, the company notified the trade union to go through the process and deal with it in accordance with the provisions of the employee code.
On February 8, 4 days after Lao Shao "disappeared", the company sent a written notice to Lao Shao stating that Lao Shao had been absent from work for 3 consecutive days from February 4 to February 7, requiring Lao Shao to return to work before February 10, and that the labor contract would be terminated after the deadline.
On February 10, Lao Shao did not appear;
On February 11, Lao Shao did not appear;
On February 12, Lao Shao still did not appear.
When Lao Shao appeared in the public eye on February 13, he had been dismissed by the company. To this end, Lao Shao called Supervisor Deng to ask for the resumption of the labor contract and to continue to work. Supervisor Deng informed Lao Shao that because Lao Shao had not asked for leave according to the regulations, he had been dismissed by the company unless he could come up with reasonable reasons.
However, Lao Shao never revealed a word about what had happened in the past few days. Lao Shao believes that he has asked his family to take leave on his behalf, not absent from work for no reason, and the company dismisses himself on this ground, which is an illegal termination of the labor contract.
Court hearings
Lao Shao, who was indignant, applied for labor arbitration to the local labor arbitration commission, demanding that the company pay him a compensation of 139326 yuan for illegal termination of the labor contract.
Labor Arbitration - Why does Lao Shao disappear these days?
When it came to the mediation link of the labor arbitration, the company learned that it was the police who took Lao Shao away on February 3. The reason lao Shao disappeared these days was because he was detained on the night of February 3. The reason why Lao Shao and his family have been reluctant to give reasons is because Lao Shao was detained for prostitution.
In the end, the arbitration commission did not support Lao Shao's request.
Court of First Instance – Is it legal for the company to dismiss Lao Shao who was detained?
The court held that an employee's request for leave is not simply to inform the company, but to have a true and reasonable reason for the leave, and ultimately the company should decide whether to approve the leave according to its own work arrangements, and the company has a certain discretionary decision.
In this case, Lao Shao did not inform the company of the facts of the detention, and lacked integrity first. Even though Lao Shao had asked his parent to ask the company for leave, there was no evidence that Lao Shao's leave application was approved by the company.
In view of this, the company determined that Lao Shao was absent from work and terminated the labor contract on the grounds that Lao Shao had been absent for many consecutive days without cause, which did not constitute an illegal termination. The company does not have to pay compensation to Lao Shao.
Court of Second Instance – rejects the application and upholds the original judgment
1. The company has a certain right to make decisions on the leave management of employees;
2. Lao Shao did not truthfully inform the company of the reason for the leave;
3. Lao Shao's absence from work for several consecutive days has adversely affected the company's normal business activities.
In summary, Lao Shao's application was rejected and the original judgment was upheld.
Sir Wang had something to say
Some people may ask, since Lao Shao was administratively detained as a prostitute, can't the company use this as an excuse to dismiss Lao Shao?
To be honest, not really.
First, when the company dismissed Lao Shao, it did not know that Lao Shao was detained for prostitution. So the reason given is, "absenteeism for no reason.".
Second, the Employment Contract Law only stipulates that "if an employee is held criminally liable in accordance with the law, the employer may terminate the labor contract" (Article 39). Lao Shao was only administratively detained and did not constitute a criminal offense.
Some people may also say that Lao Shao did not ask for leave, but because he was rejected, he could not personally ask the company for leave, and he also let his mother take leave on his behalf. So can it be considered that it is not subjectively deliberate?
I think that in such a case, even if Lao Shao could call the company to ask for leave at that time, even if he explained the facts, the company could still refuse Lao Shao's leave application.
Imagine an employee being detained for prostitution and the company granting him leave. After he comes out, he can return to work. Let's not talk about delaying production, let's say that the image of this enterprise is still needed?
If the company has to bear the compensation because it refuses to grant leave to such employees, what kind of values will such approval convey to the society?
This case tells us 3 things about workers:
1. Ask the company for personal leave, and explain the reason;
2. The company has a certain decision-making power and can refuse employees' application for personal leave;
3. The actual cost of breaking the law is higher than we think.
Do you think Lao Shao should be dismissed? Feel free to leave a message in the comments section.
This is a real case, case number: (2022) Hu 02 Min Zhong No. 1609. Interested friends, you can go to the China Judgment Documents Network, enter the case number to view the complete process.