Asking for leave to take care of the sick mother was dismissed, and the "worker" angrily sued the company for compensation

Because of his mother's sudden illness, migrant worker Xiao Zhong asked his colleagues to ask for leave on his behalf to take care of his mother. Unexpectedly, he was dismissed from the company. Angry, he took the company to court. Recently, Tongan District Court heard such a labor dispute case.
It is reported that Xiao Zhong joined the defendant company more than four years ago as an ordinary worker. On June 6, 2020, Xiao Zhong's mother was hospitalized due to sudden illness, and personnel were urgently needed to handle the hospitalization procedures and follow-up nursing care.
On June 7, 2020, Xiao Zhong immediately set out to return to his hometown to take care of his mother. At the same time, he informed his colleague Huang of this situation through wechat and asked his colleague to ask for leave from the company.
Unexpectedly, on June 10, 2020, when Xiao Zhong returned to work, he was told that he had been dismissed.
After that, Xiaozhong filed a labor arbitration with the Arbitration Commission, requesting the ruling company to pay 33000 yuan as compensation for the illegal termination of the labor contract to Xiaozhong. After being rejected by the ruling, Xiao Zhong sued again to the people's Court of Tong'an District.
Xiao Zhong sued that his mother had to rush to the hospital on Saturday after the sudden illness. He specially entrusted his colleagues to ask for leave on his behalf, and he informed the company of the relevant situation and medical records when he went to work on Wednesday. The company dismissed him without reason. This behavior was an illegal termination of the labor contract. According to Article 48 of the labor contract law of the people's Republic of China, the company should pay 37018.08 yuan as compensation.
In this regard, the company retorted that Xiao Zhong was absent from work for three days without any reason without approval, and entrusted his colleagues to help convey the leave matters on behalf of him, which did not comply with the leave procedures stipulated by the company, so it was regarded as voluntary resignation.
After hearing, the Tongan court held that it was reasonable for Xiao Zhong to return to his hometown hospital on June 7 to take care of his mother due to his mother's illness, and to return to work on June 10. In case of emergency, Xiao Zhong entrusted his colleague Huang to ask for leave orally. Although it did not comply with the company's prescribed procedures, it did not reach the situation that the company could directly terminate the labor contract in case of serious violation of the company's rules and regulations. Therefore, the company should pay compensation according to law if it illegally terminates the labor relationship with Xiao Zhong.
Therefore, Tongan court made a first instance judgment, requiring the company to pay more than 30000 yuan in compensation for Xiao Zhong's illegal termination of labor relations.
After the judgment of the first instance, the company refused and appealed to the Xiamen intermediate people's court. Finally, after the mediator specially invited by the Xiamen intermediate people's court presided over the mediation, the two parties voluntarily reached an agreement: the company agreed to pay a one-time compensation of 29000 yuan to Xiao Zhong for the termination of labor relations.
The judge said
Take care of your mother for a reason
The situation of dismissal is not reached
If you need to leave your job in an emergency and temporarily entrust a colleague to ask for leave orally, can the company unilaterally terminate the labor contract on the grounds that the employee has seriously violated the rules and regulations?
In this regard, the judge believed that due to the great diversity of workers' violations of discipline, we should comprehensively consider the industry characteristics, work posts, behavior environment, the degree of impact on the production and operation order of enterprises, the degree of subjective fault of workers and other factors to judge whether they belong to serious violations of discipline. In this case, Xiao Zhong needed to take care of his sick mother. In this process, Xiao Zhong entrusted his colleague Mr. Huang to ask for leave orally. Although he did not strictly abide by the rules and regulations of the company, Xiao Zhong's departure from work was an accidental act of filial piety for the son of man. There was a reason for it, which was also human nature. It was different from the repeated disciplinary violations committed repeatedly, and the degree of his subjective fault was obviously slight. Moreover, respecting the old and loving the young is a traditional virtue of the Chinese nation that cannot be abandoned. Xiao Zhong returned to work immediately after taking care of his mother, which did not cause serious damage or heavy losses to the company's production and operation order, and did not reach the situation that the employer can directly terminate the labor contract in serious violation of rules and regulations.
Lawyer's statement
How can the enterprise compensate for the illegal dismissal of employees?
Lin Yibin, a lawyer from Fujian diange law firm: if an employer wants to terminate the labor contract, it can do so through the following legal ways: first, through negotiation; The second is the termination of fault, that is, the six situations in which the employer can terminate the labor contract stipulated in Article 39 of the labor contract law. Third, non fault discharge, that is, physical factors, incompetence, change of circumstances, etc. stipulated in Article 40 of the labor contract law; Fourth, economic layoffs. In one of the above cases, the employer may terminate the labor contract after notifying the worker in writing 30 days in advance or paying the worker an extra month's salary.
The employer can only terminate the labor contract with the worker under legal circumstances, otherwise, it is illegal to terminate. If the employer terminates the labor contract in violation of the law, it shall pay the economic compensation of the worker's salary for one month per year according to the working years of the worker's own unit. If the worker has worked for half a year but less than one year, it shall be paid for one year, and if the worker has worked for less than half a year, it shall be paid for half a year. Article 87 of the labor contract law stipulates that if an employer terminates or terminates a labor contract in violation of the provisions of this law, it shall pay compensation to the worker in accordance with twice the economic compensation standard stipulated in Article 47 of this law.
Related cases
One absenteeism can be dismissed?
Does the company have the right to dismiss an employee who is absent from work once? Previously, Haicang District Court had heard such a lawsuit.
Xiao Zhang is the monitor of the production department of a machinery company. He once left the company in advance when working overtime at night, and was absent from work. Three days later, the company made a punishment decision on Xiao Zhang to terminate the labor contract based on the relevant provisions of the company.
Xiao Zhang refused to accept the dismissal and applied to Haicang District Labor Arbitration Committee for arbitration. Xiao Zhang believes that one absenteeism is not a big mistake and should not be dismissed directly.
Subsequently, the Labor Arbitration Commission ruled that the company should pay compensation. However, the company refused to accept the arbitration award and sued to the court.
After hearing the case, the court held that Xiao Zhang was absent from work only once and asked others to punch the time card on his behalf, and his absenteeism did not reach the level of serious violation of rules and regulations. Therefore, the company's dismissal of Xiao Zhang lacks basis and is unreasonable.
Therefore, the court finally made a first instance judgment, holding that the labor relationship between the company and Xiao Zhang was terminated, and asked the company to pay 25524 yuan of compensation.
Can dismissal bypass the Union?
Can the unit bypass the trade union if it dismisses employees? Xiamen intermediate people's court has also issued such a case before. Mr. Wang, a laborer, sued the company for this and asked the company to pay compensation for the illegal termination of the labor contract.
The defendant company replied that there were legitimate reasons for terminating the contract, because Mr. Wang was absent from work for four consecutive days, and the company terminated the contract on the grounds that Mr. Wang seriously violated labor discipline and company rules and regulations.
The court found that the company did not notify the labor union in advance of terminating the labor contract with Mr. Wang. Therefore, the court found that the employer terminated the labor contract illegally, and the judgment supported Mr. Wang's claim and required the company to pay compensation.
The judge said that it was illegal to dismiss employees without notifying the trade union. When exercising the right of unilateral termination, the employer must perform the procedure of informing the trade union.