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Can I Fire Employees for Being Absent from Work?
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FAQ About Corporate Seals in China
Last week, one of our clients called me and asked: “One employee has been absent from work for three days, does that mean his employment contract has been terminated automatically and I can just let him go?”That’s a total misunderstanding. There is no such provision in labor law that the employment contract can 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 too, doesn’t mean that the employment contract would be terminated automatically. However, labor law does specify that if employee seriously violate the company’s rules and regulations, the company is entitled to terminate the employment contract. But, as we repeatedly emphasized, it’s very important to follow the procedural requirement even it is obviously the employee’s fault initially.Because in most labor disputes, such as dismissal, termination of employment contract, reduction of remuneration etc., the burden of proof rests on the employer. The employer is required to provide justification for all its 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 has to make sure such rules and regulations are in place. And the preparation of which, has to follow the procedure strictly to ensure the effectiveness (we will elaborate on this in a separate blog). Also, please note that there is no law nor regulation says that how many days absent from work will constitute “serious violation of rules and regulations”, so the enterprise has to specify clearly if absence is up to, say 3 or 4 days, is a serious violation. 2. Timely reminderOnce the employee is found to be absent from work, employer shall send a "reminder letter" to the employee’s pre-confirmed address for service by express, urging he/she to return to work immediately (specify a deadline based on the above-mentioned rules and regulations for their return ) and remind he/she the consequences if the employee fails to do so.3. Make a decisionIf the employee failed to return to work before the specified deadline, the employer then may make a decision to terminate the labor contract, in accordance with provisions of rules and regulations of the enterprise.
4. Send notice of terminationJust 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 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 addressIt’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 contents of the letter.Another important thing is when the employer sends out reminder letter or notice of termination, the employer should state clearly the content in the envelop of the mail. So, it will be the employee’s fault if he/she refuses to accept the mail.
In this way, the employer has fulfilled their duty as a manager of reminding and notification.