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A New Trend of China Employment Law: Employer Bears Burden to Prove Employees Took Unapproved Leaves of Absences

In several recent cases where employees were terminated for unexcused absence from work, the courts and employment dispute arbitration tribunals held that the employer must bear the burden of proving that such leaves of absence were not approved by management.

In March 2010, an employment dispute arbitration tribunal in Liaoning Province ordered reinstatement of an employee who had been summarily terminated for taking leave without approval by the company. The employee had requested sick leave through text messages and phone calls to the manager, who did not respond explicitly with an approval or a disapproval.

The tribunal found that the non-response from the manager did not suggest non-approval of the leave request, and therefore the termination was not justified. Similarly, in March 2010, the Putuo District People's Court in Shanghai reversed the company's decision to terminate a foreign employee for 10 days' absence from work, as the company failed to show its disapproval of the employee's leave request submitted in an e-mail.

An employment dispute arbitration tribunal in Xining (a city in Qinghai Province) issued an order to reinstate an employee terminated for taking unapproved leave on the grounds that the regulations cited by the employer in the termination notice had already been repealed. Companies should note that under the Employment Contract Law, there is no general ground for termination for misconduct, and that companies may only terminate employees if they seriously violate the company's rules and regulations.

Given the above rulings, an employer should clearly define its leave procedures in the employee handbook (which should be validly adopted through employee consultation) and properly document its approvals as well as rejections of employees' leave applications.

 

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