Last week, one of our clients called me and asked: “An employee has been absent from work for three days, does that mean the employment contract has been terminated automatically and I can just let him go?”
That is a total misunderstanding. There is no such provision in labor law that the employment contract would be automatically terminated, no matter how long the employee is absent from work without any justification.
Of course, being absent from work is definitely a violation of the employer’s rules and regulations, but it doesn’t mean that the employment contract would be terminated automatically.
However, labor laws do specify that if employee seriously violate the enterprise’s rules and regulations, the employer is entitled to terminate the employment contract. But, as we repeatedly emphasized, in labor relationship, it’s very important to follow the procedural requirement, even it is obviously the employee’s fault.
In most labor disputes, such as dismissal, termination of employment contract, reduction of remuneration etc., the burden of proof rests on the employer. Employer is required to provide justification for all decisions. Otherwise, the arbitration committee or the court could make an award in favor of the employee.
Generally speaking, the employer has to take the following steps:
1. Prepare Rules and regulations.
If the employer wants to terminate the employment contract based on the argument that “the employee has seriously violated the enterprise’s rules and regulations”, it obviously has to make sure rules and regulations are in place! The preparation of which has to follow the procedure strictly to ensure the effectiveness, which we will elaborate in a separate blog: employee handbook.
Also, please note that there is no law nor regulation that says how many days absent from work will constitute a “serious violation of rules and regulations”, so the enterprise has to specify clearly if absence is up to 3 or 4 days is a serious violation.
2. Timely reminding
Once the employee is found to be absent from work, the employer shall send a “reminder letter” to the employee’s pre-confirmed address for service by express, urging them to return to work immediately, specifying a deadline based on the above-mentioned rules and regulations for their return, and reminding them the consequences if the employee fails to do so.
3. Make a decision
If the employee fails to return to work before the specified deadline, the employer then may make a decision to terminate the labor contract, in accordance with the provisions of the rules and regulations of the enterprise.
4. Send notice of termination
Just like in #2, send the above mentioned decision to the employee, and inform the employee that the employment contract has been terminated in accordance with the rules and regulations of the enterprise and inform the employee to go through the handover formalities.
Two important things need to be paid attention to:
1. Pre-confirmed address
It’s very important for the employer, while process new employees’ enrollment, to ask the employee to provide their address for service of note from employer and inform the employer of any change in the above-mentioned address in time.
2. State the content of mail
Another important thing is when the employer send out reminder letter or notice of termination, the employer should state clearly the content in the envelop of the mail. That way, it will be the employee’s fault if they refuse to accept the mail.
In this way, the employer has fulfilled it’s duty as a manager of reminding and notification.
