Can the employment contract be terminated due to long term absenteeism?

When the labor contract expires, the labor contract is terminated. If the long-term absenteeism is a serious violation of the employer's rules and regulations, the employer can also terminate the labor contract if the long-term absenteeism is a serious violation of the employer's rules and regulations.

Legal basis: Labor Contract Law

Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request;

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

6) Those who have been pursued for criminal responsibility in accordance with law.

Article 44 The labor contract shall be terminated under any of the following circumstances:

1) The term of the labor contract has expired;

2) The worker begins to enjoy the basic pension insurance benefits in accordance with the law;

3) The worker dies, or is declared dead or missing by the people's court;

4) The employer has been declared bankrupt in accordance with law;

5) The employer's business license has been revoked, ordered to close down, or revoked, or the employer has decided to dissolve ahead of schedule;

6) Other circumstances provided for by laws and administrative regulations.

If the labor contract can be terminated due to the expiration of the contract due to long-term absenteeism, the employer may legally terminate the labor contract with the employee in accordance with Article 39 of the Labor Contract Law, and the labor contract shall be terminated if the employee does not renew the contract upon the expiration of the term of the employee.

Labor Contract Law

Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request;

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

6) Those who have been pursued for criminal responsibility in accordance with law.

Article 44 The labor contract shall be terminated under any of the following circumstances:

1) The term of the labor contract has expired;

2) The worker begins to enjoy the basic pension insurance benefits in accordance with the law;

3) The worker dies, or is declared dead or missing by the people's court;

4) The employer has been declared bankrupt in accordance with law;

5) The employer's business license has been revoked, ordered to close down, or revoked, or the employer has decided to dissolve ahead of schedule;

6) Other circumstances provided for by laws and administrative regulations.

Units that are absent from work for a long time and seriously violate the rules and regulations can terminate the contract. The unit has the right to remove employees who are frequently absent from work without justifiable reasons and have been criticized and educated ineffectively, employees who have been absent from work for more than 15 consecutive days, and employees who have been absent from work for more than 30 days in a year.

1. Is refusal to go to work after a statutory holiday considered absenteeism?

Not counted. The so-called absenteeism refers to the failure of an employee to come to work during working hours without justifiable reasons and without prior approval.

According to the provisions of labor laws and regulations, public holidays and statutory holidays are the time for employees to take a break and rest, not working hours, so employees who do not go to work in the workplace on public holidays and statutory holidays should not be counted as absenteeism.

2. Whether you can be dismissed if you do not return to work during breastfeeding.

If you do not return to work during breastfeeding, you can be dismissed.

Employees are also required to go to work while breastfeeding, so if the employee does not come to work, it is a violation of the relevant national laws and regulations, and the employer can directly dismiss the employee without paying economic compensation, depending on the actual situation.

The rules for dismissal for absenteeism during lactation are as follows:

1. If the employee is absent from work for less than three days, one month's salary and one quarter's bonus will be deducted;

2. If the employee is absent from work for 5 days, three months' salary and half a year's bonus will be deducted, and the employee is basically competent at the end of the year;

3. If the employee is absent from work for more than 10 days, half a year's salary and a year's bonus will be deducted. The year-end appraisal should be incompetent;

5. The calculation method of absenteeism does not include penalties and holidays, if the employee is only absent from work for three days, most companies will deal with it according to their own regulations.

3. How to deal with civil servants' absenteeism for 5 days.

give warnings, demerits, or major demerits; where the circumstances are more serious, sanctions of demotion or removal are to be given; If the circumstances are serious, the sanction of dismissal shall be given: According to the Civil Servants Law, civil servants who are absent from work or go out on official business, fail to return after the expiration of leave without a legitimate reason for more than 15 consecutive days, or have accumulated more than 30 days of spine banquets in a year, shall be dismissed.

Article 39 of the Labor Contract Law.

The employer may terminate the labor contract if the employee falls under any of the following circumstances:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections after being proposed by the employer;

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

6) Those who have been pursued for criminal responsibility in accordance with law.

In practice, many employers consider that an employee is automatically terminated from work if an employee is absent from work for a long time, but there is often great legal risk in doing so. It is suggested that the employer may first mail a Reminder Letter to the employee's confirmed service address, urging the employee to return to work and informing him of the consequences of failing to return within the time limit. If the employee fails to return to work after the specified period of the "Reminder Letter" is issued, the "Notice of Termination of Labor Contract" shall be mailed and delivered in accordance with the provisions of the company's rules and regulations to terminate the labor contract with the employee.

This not only fulfills the management obligations of the employer, but also fulfills the relevant procedures for terminating the labor contract as prescribed by law, and avoids the legal risk of illegal dismissal by the employer.

According to the provisions of the Labor Contract Law, there are three ways to terminate a labor contract in China: termination by mutual agreement, unilateral termination by the employee, unilateral termination by the employer, and no automatic termination.

Article 37 of the Labor Contract Law.

Employee may terminate the labor contract by giving 30 days' written notice to the employer. The employee may terminate the labor contract by notifying the employer three days in advance during the probationary period.

It can be seen from this that the law is relatively lenient in terms of the provisions on the unilateral termination of the labor contract by the employee, and the employee can unilaterally terminate the labor contract by notifying the employer in advance, while the employer must comply with the specific circumstances stipulated in the law if the employer wants to unilaterally terminate the labor contract.

The employer shall publicize or inform the employee of the rules and regulations and decisions on major matters that directly affect the vital interests of the employee. "According to the provisions of China's Labor Contract Law, for employees who have serious violations of labor discipline such as absenteeism, the employer shall go through the necessary procedures before terminating the labor contract with the employee. First of all, the company should provide evidence that can prove that the employee violated the company's rules and regulations, and it must prove that the rules and regulations violated were known to the employee. Second, the entire procedure should be made public and announced or served on the employee.

Only when the procedure for terminating the contract is legal, the result of the termination of the contract can be legally valid, and the enterprise does not need to pay economic compensation.

In the end, after the arbitration commission explained the relevant legal provisions to the company, the company reached an agreement with Liu, and the company paid economic compensation to Liu in accordance with the law.

In practice, many employers consider that an employee is automatically terminated from work if an employee is absent from work for a long time, but there is often great legal risk in doing so. It is suggested that the employer may first mail a Reminder Letter to the employee's confirmed service address, urging the employee to return to work and informing him of the consequences of failing to return within the time limit. If the employee fails to return to work after the specified period of the "Reminder Letter" is issued, the "Notice of Termination of Labor Contract" shall be mailed and delivered in accordance with the provisions of the company's rules and regulations to terminate the labor contract with the employee.

This not only fulfills the management obligations of the employer, but also fulfills the relevant procedures for terminating the labor contract as prescribed by law, and avoids the legal risk of illegal dismissal by the employer.

If the employee's long-term absenteeism seriously violates the rules and regulations of the employer, the employer may unilaterally terminate the labor contract. The employer may unilaterally terminate the employment of the employee under the following circumstances: the employee is proved to be ineligible for employment during the probationary period; Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer; Those who have been pursued for criminal responsibility in accordance with law.

Article 26 of the Labor Contract Law of the People's Republic of China [Invalidity of Labor Contracts] The following labor contracts are invalid or partially invalid: (1) Using fraud, coercion or taking advantage of the danger of others to cause the other party to conclude or modify the labor contract contrary to its true intentions; (2) The employer exempts itself from statutory responsibilities and excludes the rights of workers; (3) Violating mandatory provisions of laws or administrative regulations. If there is a dispute over the invalidity or partial invalidity of the labor contract, it shall be confirmed by the labor dispute arbitration institution or the people's court.

Article 39 of the Labor Contract Law of the People's Republic of China [Unilateral Termination of Labor Contract by Employer (Faulty Dismissal)] The employer may terminate the labor contract if the employee falls under any of the following circumstances: (1) It is proved that the employee does not meet the employment requirements during the probationary period; 2) Seriously violating the rules and regulations of the employer; 3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer; 4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request; 5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law; 6) Those who have been pursued for criminal responsibility in accordance with law.

Legal Analysis: If the employer does not stipulate the provisions on absenteeism in the internal labor regulations of the enterprise in accordance with legal procedures, the employer cannot unilaterally terminate the labor contract in the name of absenteeism. Absenteeism is not a statutory ground for terminating an employment contract.

Legal basis: Labor Contract Law of the People's Republic of China Article 39 The employer may terminate the labor contract if the employee falls under any of the following circumstances: (1) the employee is proved to be ineligible for employment during the probationary period; (2) Seriously violating the rules and regulations on employing people and coarse positions; (3) Serious dereliction of duty, engaging in private talk of fraud, causing major harm to user units; (4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the unit, or refuses to make corrections upon the employer's request; 5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law; 6) Those who have been pursued for criminal responsibility in accordance with law.