The Orientation Of Character And Legal Choices Of "Absenteeism"

The Labor Law of the People's Republic of China and the Labor contract Law of the People's Republic of China,which are in implementation,are not consistent with the original law including Regulations of rewards and punishments for enterprise employees and the Reply Letter from the General Office of the Ministry of Labor on how to define automatic separation and delisting of absenteeism and the Reply Letter from the General Office of the Ministry of Labor on the issue that overdue non-returners should be regarded as automatic separation or absenteeism after formal recalling informing via news media and other legislations regulating automatic separation.The labor disputes about absenteeism indicate that the problem of absenteeism is not exclusive in era of planned economy.In the contemporary society,where labor relationships have been turned to contractualization,automatic separations of employees still remains and tends to trigger various labor disputes.According to the opinion concluded from the original laws,juridical practice and theoretical writings,absenteeism refers to that employees leave their jobs for their own reasons while labor relationships are not affected or terminated.The determination of the employee's absenteeism should consider both subjective and objective factors.In the view of that the law expressly provides workers with the right to resign which is highly protected,the absenteeism of employee has a strong subjective malice.The behavior is illegal,violating the labor contract,the loyalty of the laborer and the requirements of good customs in the field of labor relations.What is more,it makes no contribution to the construction of new labor ethic relations as well.Under the current labor law and regulation system,the second item of article 39 of The Labor Contract Law is used to solve the problem that if the laborer seriously violates the rules and regulations of the employing unit,the employer may unilaterally rescind the labor contract.It can be concluded from case retrieval that judicial judges have different attitudes towards the labor relations after absenteeism of employees in the aspects,including whether labor contracts are automatically terminated,the procedural obligations that employer should perform to dissolve the contract and so forth.The applicable premise of this provision is that the rules and regulations are made with democratic procedures,the contents are reasonable and lawful,and the employees know the rules.There are also different opinions about the effectiveness of the rules and regulations that have procedural flaws.The chaotic results of disposals of absenteeism lead to a serious impact on judicial authority and the reduction of the stability of labor relations,which are harmful to either employers or employees.There are three solutions to the problem of the absenteeism in the new era.Firstly,continue to apply the article that employers can dissolve the contract unilaterally.But it is needed to clarify the precondition and procedural obligation of the right above and the different legal consequences and remedial measures brought by the violation of different procedural obligations,which can maintain the consistency of judicial adjudication and complete the guiding function of the law.However,applying the solution is in disregard of the difference between absenteeism and other violations of rules and regulations,distributing rather more obligation to employers.Secondly,the feasibility of introducing the labor contract suspension system should be considered.After the absenteeism of the employee and before the accordingly reaction of employer,the labor relations between the two parties are preserved for a certain period,with both the parties being not required to perform the contractual obligations.However,the labor contract suspension system is applicable under the agreement that force majeure and legal reason make employees unable to perform the contract.Due to the subjective malice of absenteeism of employees,which is not presented as force majeure,it is claimed as improper to apply the labor contract suspension system.Finally,it is possible to construct the actual termination of labor contract system,regulating that absenteeism can be defined when the employee leaves the job for a certain period of time without proper reasons,with labor contract being automatically terminated.Meanwhile,employers should be entitled with the autonomy of using unilateral termination rights.In another word,employers are able to procedurally exercise their right to unilaterally terminate labor contract and relation.The system focuses on protecting employees,paying attention to the interests of the employers at the same time,adapting to the changes of employees and employers in the contemporary society.The intervention of public power also has legitimacy and rationality,ensuring the harmony and justice in labor relations.