How to deal with missing employees?

In December 2016, a few days after Dong lost contact, the company terminated the labor contract for absenteeism. In April 2017, Dong was diagnosed with schizophrenia, and the doctor stated that the disease had begun in August 2016. Dong’s daughter claimed that the company had terminated the labor contract illegally. The Shanghai High People’s Court finally determined it was an illegal termination of the labor contract. ((2018) Hu Min Shen No.2313).

In practice, if an employer has stipulated that absenteeism for a certain number of days, it could terminate the labor contract. Where an employee loses contact, normally the employer would apply this rule to terminate the contract. Generally speaking, if such internal rules have met the requirements of Article 4 of the “Labor Contract Law”, and the employer uses the internal rules with the right procedure, then such termination would not be deemed as illegal.

However, many judicial cases show that employers shall pay attention to the following two aspects in dealing with missing employees.

First, the reminders are very important. If an employer’s rules and regulations provide for a reminder, but the employer fails to remind, the court would be in favor of the employee, such as (2018) Yue 01 Min Zhong No.8746 and 8747. If there is no reminder requirement in the employer’s rules and regulations, since there is no statutory requirement on reminder, the court would not directly take reminder as a reason to determine an illegal termination. However, some courts might hold that the employer has terminated the labor contract illegally from the perspective of the employer’s management duties. For example, in the case (2016) Hu 01 Min Zhong No. 4969, the employee asked for personal leave and the employer did not approve it, but the employer neither urged him to return to work nor promptly sanctioned his behavior. Instead, the employee was punished one month after returning to work, the court found that the termination was improper.

Second, the exceptions for special occasions, which mainly include 2 categories:

The first category is related to diseases. For example, in the case hereinabove, the court held that schizophrenia has an incubation period, and the employer had ignored this factor. In addition, in practice, if an employee fails to ask for sick leave in time for a sudden or serious illness, the court may also be in favor of the employee.

The second category is related to the position transfer. For example, in the case (2016) Yue 01 Min Zhong No.5315, the employee refused the position transfer, and lost contact. The employer terminated the labor contract with the reason that the employee failed to go to the new position, finally, the court was in favor of the employee.

In summary, if an employee is missing, the employer could consider to use absenteeism as the reason to terminate the labor contract. It is recommended to remind the employee in time by Wechat, SMS, email and etc., and reserve the relevant evidence. If there is any special occasion, the employer’s management shall be more humanized. As for dealing with the missing employee related to position transfer, you can review the article on “How to Deal with Slack Off?” in Issue 32 of our “Legal Notebook”.