In the absence of clear provisions in the law, the leave system is mostly set independently by the enterprise, which also lays down hidden dangers for the occurrence of labor disputes——
Both parties should discuss how and how long the personal leave can be.
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At present, all companies "do their own things" for the management and approval of leave.
Professionals believe that the linear personal leave rules should be set in the Labor Standards Law, and the holiday rules and wage payment rules during work leave should be clarified.
At the same time, it is recommended that both the employer and the employee determine the leave rules through collective negotiation.
In this way, it can not only allow employees to ask for personal leave according to the rules, but also can effectively avoid wanton absenteeism, which is conducive to the realization of a "win-win" for both parties in the labor relationship.
"Who does not have parents, whose parents don't have a headache. When I took time off to accompany my dad to see a doctor, I didn't expect to be dismissed from work because of absenteeism." Recently, after receiving the verdict, Lin Xin, who worked in a construction engineering company in Liaoning, feels low.
He wanted to further protect his rights. After consulting a lawyer, he got an answer: "(In your case) the probability of winning is very small."
Employees must take care of their lives while working hard. They will always encounter leave due to personal or family reasons, which may be sick leave, maternity leave, bereavement leave, family visit leave, etc.
According to the "Labor Law", "Special Provisions on the Labor Protection of Female Employees", "Regulations on Paid Annual Leave for Employees" and other laws and regulations, employers must approve sick leave, maternity leave, and marriage leave. Paid annual leave and family visit leave can be negotiated as appropriate, except that the leave law does not Clearly defined.
The reporter found that many only-children, like Lin Xin, face the problem of unattended elderly people.
However, employers also consider labor costs.
How to better balance the interests of both parties when formulating the leave system is a question facing both parties in labor relations.
Most of the leave regulations are set independently by the company
From October 10th to 11th, 2020, Lin Xin, who lives in Yingkou City, Liaoning Province, heard from his father that his heart hurts at night for two consecutive days. Because the doctor recommended Lin to go to a hospital in Shenyang during the local consultation before, Lin Xin drove to accompany him overnight on Sunday. Father went to Shenyang to see a doctor.
Lin Xin's annual leave was taken at the beginning of the epidemic, so he could only take personal leave.
At 4 in the morning, he sent a WeChat message to the person in charge of the department to explain the situation, hoping to take two days off.
Get a reply at 7 o'clock, "Please come back Wednesday to the personnel procedures."
Unexpectedly, when Lin Xin and his father arrived at the hospital, they found that they needed a nucleic acid test to see a doctor.
They didn't register, and waited 3 days for the check-up. As a result, Lin Xin did not return to the unit before his father's illness was completed on Wednesday.
The personnel officer of the company called to inquire about the reason, and asked him to rush back to work on Thursday and make up the leave formalities.
But Lin Xin is the only child in the family. His mother passed away 4 years ago. He chose to continue to accompany his father to see a doctor, but did not return to the unit as required.
On Monday of the following week, Lin Xin received the "Employee Resignation Notice" on the grounds that according to the company's "Employee Management Measures", absenteeism for 3 consecutive days or more is a serious violation of discipline and the company can terminate the labor contract without compensation.
After the incident, the local arbitration committee believed that the employee did not go through any leave formalities and did not return to work after the company was recalled. This was an act of absenteeism and the employer could terminate the labor relationship.
Personal leave is a leave taken for personal matters.
In 2000, Liaoning Province promulgated the "Interim Measures for the Administration of Personal Leave of Public Institutions in Liaoning Province", which provides detailed regulations on private leave for public institutions.
However, for enterprise employees, Liaoning does not yet have clear regulations on personal leave, most of which are independent regulations within the enterprise.
"Workers Daily" reporters randomly interviewed 15 companies and learned that some companies did not clearly stipulate the reason, time, and wages for personal leave, and did not indicate related matters in the labor contract. They only specified "how many days are absent from work?" ".
Some companies stipulate: "Two consecutive days of absenteeism and 5 days of absence per month are directly expelled." Other companies have strict regulations on the leave procedures: "Handwritten forms are handed in and office emails are sent. After the supervisor agrees, the declaration is submitted to the personnel department for approval. You can ask for leave only after you agree, and you cannot make up the formalities afterwards."
At the same time, reporters interviewed the employees of these companies and learned that none of the 15 companies had democratic consultations with employees or employee representatives on the provision of personal leave.
Frequent leave affects work efficiency
Speaking of the company's stricter leave regulations, Dai Fei, who works for an auto parts company in Shenyang, expressed his understanding.
The company she works for was founded in 2013 and currently has 33 employees.
"It's not that companies want to squeeze employees, but lack of rules can easily lead to wanton absenteeism." Dai Fei said.
"When the company was founded, the company did not have a standardized leave system. The general manager is more tolerant. Employees can leave if they have problems, as long as the work is arranged." Dai Fei has counted that in the first three years, employees have taken personal leave for nearly 90 working days. Far beyond expectations, "At the beginning, everyone asked for personal leave tentatively. People who asked for more as much as they paid less. Gradually, more and more personal leave were requested, and some people even made up the leave slips together at the end of the year."
The Regulations on Wage Payment in Liaoning Province clarify that employers may not pay their wages during work holidays.
Without paying wages, why are companies reluctant to approve leave easily?
Dai Fei believes that although companies do not pay wages during work holidays, they have to pay social security, and worry that their work efficiency and output will be affected by the leave.
Generally, when workers take leave for personal matters, and the paid annual leave, public holidays and other vacations have also been taken, and it is difficult to coordinate, the workers generally take personal leave.
However, it is often difficult for companies to specify whether the specific reasons for asking for leave are sufficient.
"When approving personal leave, we must decide whether to approve or disapprove according to the sufficient degree of the reason for the leave, the importance and urgency of the reason, etc. However, the judgment of these circumstances often differs from person to person." In the post of Director of Personnel Said Xu Jinlong, who has worked for 10 years.
He has approved countless leave slips and said that before getting married, he would not approve any leave for taking leave to accompany his wife for check-ups, sending children to make up classes, and sending children to college.
After getting married, he became "softer" after having a personal experience. He even approved the leave slip for the birthday of his children. "Although the bottom line of the enterprise is that it cannot affect the work, the manager has a lot of discretion. ."
The rules for personal leave should be established through democratic consultation
"Enterprises must take into account the personal and property interests of workers in the process of employment management, otherwise their employment management behavior may be rated as unreasonable, condemned by public opinion, and even legal liability." Central University of Finance and Economics Labor Law and Social Security Shen Jianfeng, director of the Law Research Center, said.
Even if the company's leave approval is legal, it must consider whether it is reasonable.
Shen Jianfeng believes that although employers generally terminate labor contracts based on the fact that absenteeism constitutes a serious violation of rules and regulations, from a practical point of view, cancellations based on unreasonable regulations are mostly considered to be illegal.
Shen Jianfeng believes that my country’s personal leave system still has a lot of room for improvement: First, linear personal leave rules can be set in the Labor Standards Law, including holiday rules and wage payment rules during work leave, so as to provide basic protection for workers’ rights and interests. ; Second, it should be clear that the employing unit shall formulate leave rules through democratic procedures, so as to provide a basis for clarifying the rights and obligations of both parties on the matter of leave.
"It is indeed a good way for both parties to negotiate collectively to determine the leave rules." Xu Jinlong said that he participates in collective wage negotiations as a representative of the enterprise every two years.
The "Liaoning Province Enterprise Wage Collective Negotiation Regulations" stipulates that the content of collective salary negotiation includes the salary standard for sick leave. Xu Jinlong believes that enterprises should take the initiative to adopt democratic consultations, "through adequate communication, establish rules and regulations. In this way, it will not only allow employees to ask for personal leave according to rules, but also can effectively avoid wanton absenteeism, which is beneficial to labor. Both parties in the relationship have achieved a'win-win'." (Some interviewees use pseudonyms)