2020 year 1 month 6 Japan , Lu Yunsheng returned to his hometown after submitting a leave application form to his supervisor due to his father's illness , Leave time is 2020 year 1 month 6 solstice 1 month 13 Japan . The next day , Lu Yunsheng returned because the company did not grant leave , On the way, when he learned that his father had passed away, he went home again to deal with the funeral .
2020 year 1 month 14 Japan , Lu Yunsheng returns to Shanghai , And start work the next day .
company 《 Attendance management rules 》 Regulations , Employees' personal leave for one day shall be approved by the leader in charge , For two consecutive days, the administrative affairs department ( The office ) The examination and approval , More than three days in a row ( Including three days ) By the president of the company ( The general manager ) The examination and approval ; He has been absent from work for more than three days ( Including three days ) person , As a serious violation of the company's rules and regulations and labor discipline , The company has the right to dismiss , Terminate the labor contract in advance and refuse to pay economic compensation according to law . Lu Yunsheng signed to confirm the receipt and studied the above documents .
2020 year 1 month 31 Japan , The company issued to Lu Yunsheng 《 Notice of termination of labor contract 》, The content of the notice is ：
Comrade Lu Yunsheng , You are 2020 year 1 month 5 To the company 1 month 6 Japan -1 month 13 Apply for personal leave on May . according to 《 Company attendance management rules 》 The provisions of the , Asking for personal leave for more than three consecutive days , It needs to be reported to the leaders of the group company for approval . But without your permission , since 1 month 6 He left his post and went back to his hometown in Anhui , until 1 month 15 I just returned to my post , According to the company's attendance management regulations, it should be regarded as absenteeism . Even if you deduct 3 Three days of bereavement leave , You have been absent from work for more than three days ( Including three days ) Standards for , It's a serious violation of the company's rules and regulations and labor discipline , The company has the right to dismiss , Terminate the labor contract in advance and refuse to pay economic compensation according to law . For this reason , The company now informs you to terminate the labor contract , Your last working day in the company was 1 month 30 Japan , The labor relations between the two sides have developed since 1 month 31 It's going to be lifted from the next day .
2020 year 3 month 27 Japan , Lu Yunsheng applied for arbitration , Ask the company to pay compensation for illegal termination of labor contract 104,069.06 element . After hearing by the Arbitration Commission , Adjudicate the company to pay compensation for illegal termination of labor contract 75,269.04 element .
The company doesn't accept , Institute proceedings .
Court of first instance ： The company ignored the background of the incident , Rules and regulations applicable to machinery , Strict implementation of employment management , Obviously not .
The court of first instance held that , Labor relations have distinct personal attachment and subordination . In the process of performing the labor contract , The employer has the right to manage the workers , We have the right to punish workers who violate labor discipline, rules and regulations . but , The employer should follow the reasonable principle when exercising the management power 、 The principle of limits and goodwill . Rescinding the labor contract is the most severe disciplinary measure , In particular, employers should use it with caution .
Case , Lu Yunsheng went back to his hometown for funeral because of his father's death , It's dealing with sudden family affairs , It's also filial piety , In line with the traditional ethics and good customs of the Chinese nation . The company as an employer , Full respect should be given 、 Understanding and tolerance . Lu Yunsheng claims that his father is in 2020 year 1 month 7 Day died , On 1 month 12 Cremation on the sun , And provide a certificate issued by the village committee to prove , Although the company does not approve , But there is no evidence to the contrary , The court of first instance accepted this . so , Lu Yunsheng invited 1 month 6 solstice 1 month 13 My personal leave is in 1 month 7 The nature will change in the future , It turns into the coexistence of personal leave and bereavement leave . Deducting three days of bereavement leave , Actually, Lu Yunsheng only asked for two days' personal leave . Considering that Lu Yunsheng's hometown is out of town , It also takes a lot of time , Lu Yunsheng asked for two days' personal leave , Within a reasonable period . In this case , The company refused to approve , Obviously, it's not human , It also violates the purpose of setting up the personal leave system .
1 month 14 The day is not in the range of asking for leave , Lu Yunsheng did not return to his post on time , It can be regarded as absenteeism , But the company takes personal leave without permission 2 Heaven and 1 month 14 Total absenteeism is up to 3 The labor contract is terminated on the ground of heaven , Regardless of the background of the incident , Rules and regulations applicable to machinery , Strict implementation of employment management , Obviously not .
another , Lu Yunsheng died of his father's illness 1 month 6 I submitted my application for personal leave on the morning of the 12th , Have completed the leave procedures , The director of the company and the property manager of the community have signed the application for leave , However, Lu Yunsheng's application for leave was submitted to the group company for approval only in the afternoon of the same day , He told Lu Yunsheng the next day that his leave had not been approved , So Lu Yunsheng 1 month 6 The absence behavior of the day , It is due to the company's failure to exercise the right of examination and approval in time , It should not be regarded as absence without reason . Lu Yunsheng's absence involves 6 A due day , deduction 3 Three days of bereavement leave , Lu Yunsheng is actually absent from work 2 God , It also fails to meet the conditions stipulated in the company's rules and regulations that the labor contract can be terminated .
So no matter from what angle , The company all constitutes illegal termination of labor contract , Compensation is due . After accounting , Before Lu Yunsheng lifted the labor relationship 12 The average monthly salary is 3,197.5 element . The court of first instance calculated the compensation for the illegal termination of the labor contract based on this and combined with Lu Yunsheng's working years . The amount of the arbitration award is within the scope of the court of first instance , Lu Yunsheng did not file a lawsuit , Shall be deemed to recognize , The court of first instance confirmed . so , The company shall pay compensation for Lu Yunsheng's illegal termination of the labor contract 75,269.04 element .
The company doesn't accept , Appeal .
The court of second instance ： Go back to my hometown to do funeral for my father , In line with the Chinese traditional ethics and good customs , it , Companies should also be tolerant of ordinary good people 、 Treat with empathy .
The court of second instance held that , During the performance of the labor contract , Both the employer and the laborer are responsible for the actual 、 to the full 、 Properly perform the obligations of the contract . The laborer has the consciousness to maintain the labor order of the employing unit , The obligation to abide by the rules and regulations of the employer ; The boundary of the management power of the employer and the way to exercise it should also be in good faith 、 Tolerance and rationality . Case , Lu Yunsheng is absent from work for more than three days ( Including three days ) To terminate the labor contract of both parties , Whether the company is terminated illegally , We should examine whether Lu Yunsheng has the corresponding disciplinary facts claimed by the company .
Regarding this , We believe that , On the basis of the evidence on the record and finding out the facts , Lu Yunsheng works two days off and one day off ,2020 year 1 month 6 solstice 14 During the day , His leave date is 1 month 6 solstice 13 Japan , Their due attendance dates are respectively 6 Japan 、8 Japan 、9 Japan 、11 Japan 、12 Japan 、14 Japan .
First , About 2020 year 1 month 6 solstice 13 Japan , Lu Yun was born in 1 month 6 I submitted the leave procedure on the morning of the 12th , Li Jian and Wu Huiyu, their superiors, signed the agreement , however , Its leaders did not report to the group company for approval until the afternoon , The next day he told Lu Yunsheng that he had not been approved , Therefore, the first instance found that Lu Yunsheng 1 month 6 The daily absence is due to the company's failure to exercise its approval power in time , It should not be regarded as absenteeism , There is nothing wrong .
1 month 7 Because the company didn't grant leave , On the way back to Shanghai, I learned that my father had passed away, so I went home again to handle the funeral , thus , The nature of personal leave has changed , It turns into the coexistence of bereavement leave and personal leave , Deducting three days of bereavement leave , Lu Yunsheng's actual personal leave days are 2 God , As for this 2 Whether the day off should be approved , Throughout this case , Lu Yunsheng asked for leave , A thing for it , He went back to his hometown to arrange funeral for his father , In line with the Chinese traditional ethics and good customs , it , Companies should also be tolerant of ordinary good people 、 Treat with empathy .
As for the company's objection to the death of Lu Yunsheng's father and the time of cremation , We believe that , In the vast rural areas of China, including Lu Yunsheng's hometown of Anhui, there are still funeral customs of mourning , The relevant village committee's certificate shows that the time taken by Lu Yunsheng's father from his death to cremation is still within a reasonable range , Respect folk customs , It is also necessary for employers to show consideration for the specific difficulties and misfortunes of employees , Therefore, the court does not accept the company's claim .
secondly , as for 2020 year 1 month 14 Japan , This day is not within the scope of Lu Yunsheng's leave period , The company identified that day as absenteeism , There is nothing wrong .
Sum up , Lu Yunsheng didn't meet the conditions stipulated in the company's rules and regulations to terminate the labor contract , The company is illegal . About Lu Yunsheng before the termination of labor relations 12 The average salary and working years of one month , The court of first instance found it correct , We will not repeat it . The first instance found that the company should pay compensation for Lu Yunsheng's illegal termination of the labor contract 75,269.04 That's right , The court maintains . The judgment of the second instance is as follows ： Dismiss appeal , Maintain the original judgment .
source ： Surging news The original title ： The man asked for leave because of his father's death Dismissed as absenteeism
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