Can you fire an employee who is chronically late?

On May 12, 2024, the All-China Federation of Trade Unions published an article titled as “A company fired an employee who was late 98 times with 2N compensation” ?!”. In this article, the company fired an employee who was late 98 times, however, both the Beijing Fangshan District People’s Court and the Beijing Second Intermediate People’s Court determined that such termination is illegal.

This article has a ripple effect. Because the management of attendance is very important for enterprises, many of whom have stipulated punishment rules for being late and leaving early in their internal rules and regulations. If such rules would not be recognized by courts, such internal rules and regulations exist in name only. However, if a company could implement the following 3 aspects well, such rules would be recognized in judicial practice.

Firstly, such rules should go through democratic procedure in accordance with laws. The precondition for the application of such rules is whether such rules are internal rules and regulations as formulated in accordance with Article 4 of the “Labor Contract Law”.

Secondly, such rules should be reasonable. Some enterprises stipulate that being late for more than 1 hour should be considered as half a day of absenteeism, but such absenteeism is different from the real absenteeism of employees who are not on duty, so such absenteeism should not be mechanically accumulated to the circumstance that could be deemed as a serious breach of internal rules and regulations. For example, in the case (2021) Hu 01 Min Zhong No.10769, the court pointed out that, “An absenteeism refers to the behavior of an employee being absent from work without completing any leave procedures during working hours, and its essence is an objective factual state of the employee’s failure to fulfill labor obligations. The provision in the internal rules and regulations stipulates that an employee who is late or leaves early for 1 hour shall be deemed as half a day of absenteeism, and that being late or leaves early for 3 hours shall be deemed as one day of absenteeism, which have deprived the employee’s right during his actual working period.” Based on this analysis, the court held that the company mechanically calculated the deemed absenteeism up to 6 days was not reasonable, and ruled such termination by the company was illegal.

Thirdly, in individual cases, the application of such rules shall be rational and fair.

(1) When such rules are reasonable, the application of such rules should be rational as well. In similar cases, although the employee was often late, the employer suddenly fired him without any prior education, normally such termination would be deemed as illegal. However, if the employer has taken necessary measures, such as education, warning or etc., the employee is still late frequently, and then the employer fires him. The procedure shows the rationality of the application of such rules, and it is highly possible for courts to rule in favor of the employer.

(2) The fairness of the application of such rules is also important. Some enterprises believe that the rules and regulations should be comprehensive and reasonable, which could be used at the enterprises’ discretion. Such opinion is risky. On the one hand, it is unfair to other diligent employees. On the other hand, employees who violate rules will be tolerated, and put enterprises into a risky circumstance. For example, in the case (2020) Jing 02 Min Zhong No.2263, the court pointed out that the company’s management of attendance had always been loose, and the attendance rules were not strictly applicated, by which the court determined that the company had illegally fired the employee.

In summary, in order to guarantee the application of rules regarding attendance management, enterprises shall formulate such rules in accordance with laws, and pay attention to the rationality and fairness in dealing with individual cases.