Why does a woman have to pay compensation when she comes back from a trip on sick leave?

The woman took sick leave for a month but went out to travel, and when she came back, she asked the company for compensation.

When an employee is sick, the company shall grant the employee a reasonable period of sick leave, which is the right of every employee. However, in a recent labor contract dispute accepted by the Zhangpu Court in Kunshan, an employee was on long-term sick leave but traveled during the sick leave, causing dissatisfaction among the employer. After returning, the employee also wanted to fire the squid in the unit and asked for compensation.

Ms. Zhang, from Zhangpu, Kunshan, worked as a team leader on the production line of a hardware company, and from September 1, 2016, Ms. Zhang requested a three-month long sick leave from the company due to illness, which was approved by the company. Due to work needs and considering Ms. Zhang's long-term sick leave, the company adjusted her to a more relaxed position.

However, after Ms. Zhang returned to work, the company received a notice to appear in arbitration. It turned out that Ms. Zhang requested to terminate the contract on the grounds that the company had not provided working conditions, and demanded that the company pay economic compensation.

During the arbitration response, the company found that during Ms. Zhang's sick leave, she actually showed off her travel in the circle of friends, so one month after Ms. Zhang filed for arbitration, the company requested to terminate the labor contract with Ms. Zhang on the grounds of absenteeism.

After the trial, the court held that the dispute between the two parties over severance should be handled in accordance with Ms. Zhang's proposal to terminate the labor contract before the employee proposed to terminate the labor contract. In accordance with the company's own production requirements and combined with Ms. Zhang's long-term sick leave, it was more reasonable for her to be adjusted to a more relaxed position, and the salary was equivalent to the original salary level.

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If an employee is dismissed for taking sick leave to travel, he or she cannot claim compensation if he or she has seriously violated the rules and regulations of the employerHowever, if the employer has breached the contract and terminated the contract with the labor model agent, such as the procedural violation, the employee may claim corresponding compensation.

Legal basis. Article 4 of the Labor Contract Law of the People's Republic of China (2012 Revision) [Rules and Regulations] Employers shall establish and improve labor rules and regulations in accordance with the law to ensure that employees enjoy labor rights and perform labor obligations. When formulating, revising or deciding on rules and regulations or major matters directly related to the vital interests of employees, such as labor remuneration, working hours, rest and vacation, labor safety and health, insurance and welfare, employee training, labor discipline and labor quota management, the employer shall discuss with the employee representatives or all employees, put forward plans and opinions, and negotiate with the labor union or employee representatives on an equal footing.

In the process of implementing the rules and regulations and decisions on major matters, if the trade union or employees deem it inappropriate, they have the right to propose it to the employer and revise and improve it through consultation. 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.

Sick travel dismissal is not eligible for claims. Taking sick leave to travel is tantamount to absenteeism. If the number of days of absenteeism reaches the number of days of dismissal stipulated by the employer, the employer may unilaterally terminate the employment contract without paying compensation.

1. Can I get compensation if I am dismissed for absenteeism?

Absenteeism refers to absenteeism without justifiable reasons, without asking for leave or without permission to ask for leave, which is a violation of labor discipline.

The contract may be terminated if the number of days of absenteeism reaches the provisions of the rules and regulations formulated by the employer in accordance with the law, and the employer may terminate the contract in accordance with the relevant provisions; The rules and regulations of the employer do not stipulate the number of days for the termination of the contract for absenteeism, and the employer may terminate the contract if the number of days the contract can be terminated as stipulated by the province or municipality where the employer is located.

If the employee is terminated by the employer because he or she is absent from work and meets the requirements of the contract termination clause, there is no severance payment. If the employer suffers losses due to absenteeism, the employer shall be liable for compensation.

2. Is there any pay for being fired for absenteeism?

Absenteeism is paid for dismissal.

Article 50 of the Labour Law stipulates that wages shall be paid to the worker himself on a monthly basis in the form of money. Wages shall not be deducted or unjustifiably delayed.

Article 91 stipulates that if an employer infringes upon the lawful rights and interests of a worker in any of the following circumstances, the labor administrative department shall order the employer to pay the worker's wages and remuneration and economic compensation, and may also order the payment of compensation:

1) Withholding or defaulting on the wages of workers without reason;

2) Refusal to pay wages and remuneration for extended working hours;

3) Paying wages to workers lower than the local minimum wage standard;

4) Failing to give economic compensation to the worker in accordance with the provisions of this Law after the termination of the labor contract.

3. What should I do if an employee takes sick leave?

With regard to the issue of an employee taking sick leave all the time, the employer may require the employee to submit proof of illness, and if it is really necessary to take leave, the employee will be granted leave in accordance with the law. If the certificate cannot be submitted, it can be dealt with as absenteeism in accordance with the company's system, and after a certain number of times, the labor contract can be terminated in accordance with serious disciplinary violations.

If a worker is sick or injured not due to work-related injuries and is unable to perform his or her original job or work arranged by the employer after the prescribed medical treatment period has expired, the employer may terminate the labor contract after giving 30 days' written notice to the employee or paying the employee an additional month's salary.

Article 39 of the Labor Contract Law provides that an employer may terminate a labor contract if an 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 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.

1. First check whether there is such an agreement in the contract signed with the employer, and whether there are such provisions in the rules and regulations of the employer that you confirm and publicize.

2. If there are such clauses in the contract and the rules and regulations of the unit, it is also a non-hail potato attack clause.

Reference: Labor Contract Law.

Article 25 Except as provided in Article 22 of this Law (the agreed service period for the special training fees provided by the employer) and Article 23 (keeping the confidentiality of commercial intellectual property rights), the employer shall not agree with the employee that the employee shall bear the liquidated damages.

3. According to the interim provisions on wage payment, if you cause losses to the employer because you lie about personal leave, and there are also corresponding provisions in the contract, the problem of compensation for losses may arise. In the case of what you said, if there is no evidence to prove the loss, there is no basis for you to compensate.

Interim Provisions on Payment of Wages Article 16 Where an employee causes economic losses to the employer due to his or her own reasons, the employer may require the employee to compensate for the economic losses in accordance with the provisions of the labor contract. Compensation for losses incurred in handling filial piety can be deducted from the employee's own salary. However, the monthly deduction shall not exceed 20% of the employee's salary for that month.

Legal Analysis: If an employee is dismissed for taking sick leave for travel, if he or she does seriously violate the rules and regulations of the employer, he cannot claim compensation; However, if the employer has a breach of contract and terminates the contract with the employee, for example, if the procedure is illegal, the employee may claim corresponding compensation.

Legal basis: Article 39 of the Labor Contract Law of the People's Republic of China.

Unilateral termination of the labor contract by the employer (negligent dismissal)] 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 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) Being pursued for criminal responsibility in accordance with the Law on Lifting Property.