Due to the bone hyperplasia, Jia submitted the application for sick leave and proofs to the department head. The department head approved the application, but the HR department refused to approve, because proofs did not meet the requirements, and the general manager did not approve as well. Later, the company dissolved the labor contract with Jia, by the reason that proofs submitted by Jia did not meet the requirements as stipulated in the “Employee Handbook”, in which an employee should provide the diagnosis of the hospitals designated by States Social Security Administration, the records of the diagnosis(medical records, payment receipts) and sick leave certificates issued by the doctors. However, the court determined the company had illegally dissolved the labor contract.The root reason for this determination is the lack of the regulations on the leave request procedure (hereinafter referred to “Procedure”).
In practice, if an employee failed to perform “Procedure”, the employer would determine the employee was absent and dissolve the labor contract for this reason, normally, the courts might be in favor of the employer. However, the precondition for the legal dissolution of a labor contract is “Procedure”. Although many employers have insert “Procedure” in the internal rules and regulations, they still have to pay attention to the rationality of “Procedure”.
When designing “Procedure”, employers shall avoid the following common misunderstandings.
1.The reasons and documents for a leave application are not clear. An employer shall determine whether a procedure could be applied to all kinds of leave, such as sick leave, personal leave, annual leave and etc., or different procedures shall be applied in accordance with the different status of the employer. In addition, different leaves shall have different requirements on proofs. For example, the sick leave requires register receipt, medical record, prescription, treatment fee receipt and so on; the death leave requires the proof of death and so on.
2.“Procedure” is too tedious. If all leaves shall be approved by the direct supervisor, department head, HR and GE, then it is not only ineffective, but also might arise risks. Moreover, in some cases, such tedious procedure might be deemed as unreasonable. In view of this, it is feasible to set different approval levels on the reason of the leave request, the period of leave of absence from work and so on.
3.The consequence for the failure in performing “Procedure” is unreasonable. Many employers stipulate if an employee fails to perform “Procedure”, the employee shall be deemed as absent from work, and when the dates of the absenteeism exceed the time limit, the employee shall be deemed as seriously violating the rules and regulations. This is a reasonable consequence. However, some employers have designed flexible consequences, which might cause the employer to lose a lawsuit. Hereinafter we have listed several common articles. For example, if the sick leave application does not meet the requirements or the period of medical treatment has been expired, such sick leave application might be automatically transferred to a personal leave, the employer shall be entitled to reject such application. If the employer rejects such application, the employee shall be deemed as absent from work, and the employer could dissolve the labor contract. For the first circumstance, if the employee is unable to take up his original work or any other work arranged by the employer on the expiration of the specified period of medical treatment, the employer could dissolve the labor contract by paying the economic compensation. If the employer dissolves the labor contract by the reason of absenteeism, such dissolution might be deemed as illegal and the employer might have to pay double of the economic compensation. For the second circumstance, if an employee does have an emergency, for example, he is the only child in the family, he has to take care of his father who is a widower and encountered a traffic accident, if an employer dissolve a labor contract, then it is highly possible for the court to determine such dissolution is illegal.
In addition, when a reasonable leave request procedure has been released, employers shall also strictly implement such procedure. In practice, many employers failed to implement such procedure strictly, for example, employees are allowed to make up the procedure, or convert different leaves freely, and so on. These implementations might be used by employees in the labor disputes, and result in the employers’ loss.