Employee Dismissed for 29.5 Days of Unauthorized Absence: Court Upholds Termination Under Chinese Labor Law

Employee Dismissed for 29.5 Days of Unauthorized Absence: Court Upholds Termination Under Chinese Labor Law

CASE OVERVIEW

A Chinese appellate court upheld an employer’s decision to dismiss an employee who accumulated 29.5 days of unauthorized absences over a seven-month period. The court found the termination lawful under Article 39 of the PRC Labor Contract Law, rejecting claims for compensation, annual leave pay, and travel expenses. The employee’s total absence far exceeded the company’s internal threshold of 5 cumulative days for automatic contract termination.

CASE BACKGROUND AND FACTS

The employee, Mr. Tan, began working for a manufacturing company in Eastern China in July 2007 as a pump station connection worker. The parties signed a three-year fixed-term employment contract on January 1, 2008, with a compensation structure combining a base salary and piece-rate wages. The contract explicitly required Mr. Tan to comply with all company rules and stated that serious violations could result in termination under Article 39 of the Labor Contract Law.

The company’s employee handbook stipulated that three consecutive days of unauthorized absence or five cumulative days of unauthorized absence during the contract term would result in automatic contract termination. The handbook also provided for five days of annual leave for employees with between one and ten years of service.

Between July 2009 and January 2010, Mr. Tan’s average monthly wage was 1,759.58 RMB, which the company paid in full each month. In January 2009, Mr. Tan took a 12-day home leave, with the company reimbursing his round-trip travel expenses.

COURT PROCEEDINGS AND EVIDENCE

The dispute arose after Mr. Tan believed the company underpaid his June 2009 wages. Following an unsuccessful attempt to address the issue internally, Mr. Tan failed to report to work on July 18 and 19, 2009. In September 2009, he objected to a work assignment change and did not work for four and a half days. In December 2009, the company assigned Mr. Tan to a night shift. He refused, claiming he should work day shifts, and did not attend work for 23 consecutive days.

On February 6, 2010, the company terminated Mr. Tan’s employment, citing serious violation of company rules. Mr. Tan filed a labor arbitration claim seeking compensation for wrongful termination, annual leave pay, and travel expenses. The arbitration panel rejected all claims. Mr. Tan then filed a lawsuit in the local court, which also ruled against him. He appealed to the intermediate court.

During the appeal, neither party submitted new evidence. The appellate court reviewed the trial record and the parties’ arguments.

COURT FINDINGS AND JUDGMENT

The appellate court affirmed the trial court’s decision. The court found that Mr. Tan had failed to report for work for 2 days in July 2009, 4.5 days in September 2009, and 23 days in December 2009, all without obtaining prior approval or submitting a leave request. This total of 29.5 days of unauthorized absence far exceeded the 5-day cumulative threshold in the company’s employee handbook.

The court rejected Mr. Tan’s argument that his piece-rate wage arrangement meant he could not be considered absent. The court noted that the company had repeatedly assigned work to Mr. Tan, which he refused. The court also dismissed Mr. Tan’s claim that the shift change from day to night work constituted an unauthorized change to his job content. The court held that the contractual clause requiring mutual agreement for job content changes applied only to the nature of the work (pump station connection), not to shift scheduling. The night shift assignment did not violate the contract’s provision on standard working hours.

Regarding annual leave, the court found that Mr. Tan’s 12-day home leave in January 2009, minus the statutory Spring Festival holiday, was sufficient to cover his annual leave entitlement. The company had also reimbursed his travel expenses for that trip.

The court concluded that the company’s termination decision complied with Article 39(2) of the PRC Labor Contract Law, which permits dismissal when an employee seriously violates the employer’s rules and regulations. The appeal was dismissed, and Mr. Tan was ordered to bear the 10 RMB appellate filing fee.

KEY LEGAL PRINCIPLES

Under Article 39 of the PRC Labor Contract Law, an employer may unilaterally terminate an employment contract without notice or severance payment if the employee seriously violates the employer’s legally established rules and regulations. This principle was applied in this case, where the employee’s cumulative unauthorized absences clearly breached the company’s internal policies.

The court also clarified that a shift change from day to night work does not constitute a change in “job content” under a standard employment contract, provided the nature of the work and the working hours system remain unchanged. Employers retain the right to adjust shift schedules based on operational needs.

PRACTICAL INSIGHTS

This case serves as a reminder that internal company policies, including employee handbooks, carry significant legal weight in Chinese labor disputes. Employers should ensure their rules are clear, legally compliant, and properly communicated to employees. Employees should understand that unauthorized absences, even under a piece-rate compensation system, can constitute serious misconduct leading to lawful termination.

For employees who believe their wages are incorrect or that a work assignment is unfair, the proper course is to use internal grievance procedures or seek legal advice, rather than refusing to work. Unilateral absence, regardless of the reason, may be treated as a disciplinary violation.

LEGAL REFERENCES

PRC Labor Contract Law, Article 39
PRC Labor Contract Law Implementation Regulations, Article 19(3)
PRC Civil Procedure Law (2007 Revision), Article 153(1)(1)
State Council Regulation on Paid Annual Leave for Employees, Article 3
Zhejiang Provincial Guidance on Handling Labor Dispute Cases (Trial) (Zhe Zhong [2009] No. 2), Article 46(1)

DISCLAIMER

This article is for informational purposes only and does not constitute legal advice. Laws and regulations may vary by jurisdiction and are subject to change. Readers should consult a qualified legal professional for advice specific to their situation.