In the context of employment law, managing employee absences is crucial for maintaining workplace efficiency and compliance with legal regulations. This article addresses the legal implications when an employee is absent for five consecutive working days without justification, as well as the rights and responsibilities of both employers and employees in such situations.
- Legal Provisions for Employee Absences
According to Point e, Clause 1, Article 36 of the 2019 Labor Code, employers have the right to unilaterally terminate an employment contract under the following circumstances:
“The employee unilaterally leaves work without a valid reason for five consecutive working days or more.”
This regulation applies specifically to cases where the employee has been absent for five consecutive working days without justification. If an employee is absent for fewer than five days, regardless of the reason, the employer cannot unilaterally terminate the employment contract without following appropriate disciplinary procedures.
Therefore, employers are entitled to terminate the employment contract if the employee fails to notify them of their absence or if they leave work for an extended period without a valid reason when absent for five consecutive days. However, this right must be exercised legally and in accordance with established procedures.
- Procedures for Handling Absences of Five Consecutive Days
Furthermore, Article 125 of the 2019 Labor Code states that if an employee unilaterally leaves work for a cumulative total of five days within a 30-day period, or a cumulative total of 20 days within a 365-day period, without a valid reason, the employer may apply disciplinary measures, including termination.
Thus, when an employee is absent for five consecutive days, the employer has the right to unilaterally terminate the employment contract and can impose disciplinary measures if the employee accumulates five days of absence within 30 days or 20 days within 365 days. This regulation not only protects the legal rights of employees but also aids employers in maintaining a professional and stable work environment.
- Consideration of Leave Days
According to Article 113 of the 2019 Labor Code, employees who have worked for a single employer for 12 months are entitled to annual leave with full pay as follows:
- 12 working days for employees working under normal conditions;
- 14 working days for minors, individuals with disabilities, and those in heavy, hazardous, or dangerous jobs;
- 16 working days for individuals in particularly heavy, hazardous, or dangerous jobs.
Employees are entitled to annual leave if they have worked for at least 12 months at the company. If an employee leaves before completing 12 months, annual leave is calculated based on the actual time worked (on a monthly basis).
- Termination and Employee Rights
- Termination Due to Absence
According to Clause 8, Article 34 of the 2019 Labor Code, one of the grounds for terminating an employment contract is if the employee is subject to disciplinary termination. Thus, if an employee is disciplined with termination due to unauthorized absence, their employment contract will be terminated.
- Entitlements Upon Termination
Based on Article 48 of the 2019 Labor Code, an employee is entitled to receive their salary for the days worked, along with any applicable allowances, prior to their absence.
According to Article 46, severance pay applies if the employee has worked for 12 months or more and the reason for contract termination is lawful. However, if the employee unilaterally leaves work without justification (such as being absent for five consecutive days without prior notice), they are not entitled to severance pay.
Furthermore, Clause 3 of Article 48 outlines the employer’s responsibilities, which include:
- Completing the procedure to confirm the duration of social insurance and unemployment insurance contributions and returning any original documents that the employer has retained from the employee.
- Providing copies of documents related to the employee’s work history if requested. The employer bears the cost of copying and sending the documents.
In conclusion, when an employment contract is terminated due to an employee’s continuous absence of five consecutive days, the employee may receive their salary for the days worked before the absence, any unused annual leave, and their social insurance documents. This ensures a fair process while upholding the rights and responsibilities of both the employer and the employee.
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1. Lawyer Vu Thi Phuong Thanh, Manager of TLA Law LLC, Ha Noi Bar Association
Email: vtpthanh@tlalaw.vn
2. Lawyer Tran My Le, Chairman of the Members’ Council, Ha Noi Bar Association
Email: tmle@tlalaw.vn.
Dinh Phuong Thao