Always a Current Issue for Employers: Processing Employee Unexcused Absence from Work and Possible Sanctions
An ongoing concern for employers is how to process an employee’s unexcused absences from work and what sanctions can be imposed for such behavior by employees. In this text, we first explain the conditions under which unjustified absence can be sanctioned, and then we explore the appropriate sanctions considering the degree of violation of work discipline by the employee.
The Employer’s Obligation to Specify Unexcused Absence from Work as a Termination Reason
Namely, the Labor Law prescribes the consequences of violating work obligations and disregarding work discipline of employees, within Chapter XVI of the Labor Law, which regulates the issue of termination of employment, and where Article 179, paragraph 3 of the Labor Law defines the reasons for which the employer can unilaterally terminate the employment contract with the employee. However, the aforementioned provision does not explicitly stipulate that the employer can terminate the employment contract with the employee due to unexcused absence from work. Instead, item 8) leaves the possibility for the employer to expand the list of termination reasons through its internal act and independently define additional reasons that it considers a violation of work discipline.
Therefore, the legislator has not provided unexcused absence from work as a separate termination reason. It is up to the employer to define this as a separate termination reason through its act. De facto, this means that any violation of work discipline, not explicitly prescribed by the provisions of the Labor Law, must be stipulated by the employer’s act; otherwise, it cannot constitute a lawful termination reason or a reason for imposing any other sanction because the employee cannot suffer the negative consequences of their behavior if it is not explicitly prescribed by the employer’s act as a reason for sanctioning.
Possible Sanctions for Employee Unexcused Absence from Work
Unexcused absence from work can only be sanctioned if the employer’s internal act specifies it as a violation of work discipline. The sanction for unexcused absence can be:
- Termination of the employment contract, as the most severe measure
- Imposition of a fine in the amount of up to 20% of the basic salary for a period of up to three months
- Temporary removal of the employee from work without pay for one to 15 working days
- Warning with the announcement of termination of the employment contract
It is necessary for the employer’s act to specify how many working days of unexcused absence from work constitute a violation of work discipline and a termination reason, or a reason for imposing one of the aforementioned milder measures. The employee must be aware of what constitutes a violation of work discipline and its consequences, or precisely how many days of absence from work at the employer’s premises constitute a termination reason.
For example, if the employer defines in the work regulations that an unexcused absence from work exceeding 2 (two) working days constitutes an act of disregarding work discipline, for which the employer can terminate the employment contract with the employee, it is not possible for the employees at the employer’s premises to lawfully terminate the employment contract due to an absence of 2 (two) working days. In that case, to terminate the employment contract, it is necessary for the employee to be absent from work for more than 3 (three) working days, and these days do not have to be consecutive; there can be a time gap between them.
Choosing the Appropriate Sanction and Judicial Practice
The question arises whether unexcused absence from work, even in the shortest duration, can lead to lawful termination of the employment contract, or whether such a severest sanction is appropriate for what can be considered a lower degree of violation of work discipline.
Namely, although the Labor Law does not distinguish between minor and major violations of work discipline but only requires awareness of the violation of work discipline, considering the judicial practice, it is legally established that termination decisions are illegal because the violations are not of such a nature as to warrant termination as the most drastic measure (e.g., the employer’s act defines that unexcused absence from work exceeding 1 working day constitutes an act of disregarding work discipline, and the employee was unjustifiably absent for 2 working days).
Therefore, since there is a tendency for courts to examine the legality of termination decisions based on the proportionality of the violations compared to the imposed sanction, it is concluded that unexcused absence from work, to be sanctioned by termination of the employment contract, must be of such a nature that unequivocally justifies termination of the employment contract as the most drastic measure imposed on the employee.
In this regard, it is not necessarily only about the duration of that absence but also about the frequency of such violations. There is no specific answer to the question of what period of unexcused absence is sufficient for terminating the employment contract; these circumstances must be assessed in each specific case, along with an assessment of all relevant facts.
Therefore, if the employee has been absent from work for one working day for the first time, it could be considered that termination of the employment contract for such a violation of work discipline is too severe. This is particularly because it can be expected that the court, in such a situation, will consider that this period as a reason for termination is disproportionate to such a severe sanction. Therefore, in such circumstances, it is advisable to impose one of the aforementioned milder measures that substitute for termination of the employment contract and are defined by the provisions of Article 179a of the Labor Law.
Finally, it is important to bear in mind that, although the legal formulation referring to milder sanctions is not entirely clear, the issuance of the aforementioned disciplinary sanctions must precede the complete termination procedure because they substitute for termination. Therefore, before imposing a disciplinary measure, the employer must issue a warning to the employee regarding the existence of reasons for termination of the employment contract and give the employee a deadline to respond in accordance with Article 180 of the Labor Law, and then impose the disciplinary measure by issuing an appropriate decision.
The information in this document does not constitute legal advice on any particular matter and is provided for general informational purposes only.