ABSENTEEISM

How can the company react to unjustified or short-term absences or to a fraudulent medical certificate?

(Click on the country you want to view)

SOUTH AFRICA – THE HOST COUNTRY
ALGERIA
EGYPT
HONG KONG
INDIA
INDONESIA
ISRAEL
JAPAN
KENYA
KOREA
LIBYA
MAURITANIA
MAURITIUS
MOROCCO
NEW ZEALAND
NIGERIA
OMAN
SAUDI ARABIA
THAILAND
TUNISIA
UGANDA

SOUTH AFRICA – THE HOST COUNTRY

The employer should investigate the reasons why an employee has been absent from work, whether as a long-term absence or more frequent short-term absences. In the case of unjustified absences from work, employees may be disciplined for misconduct. Where the employee alleges that he/she has been ill, the employee should be requested to provide the employer with a medical certificate. An employer is entitled to verify the authenticity of the medical certificate and, where such certificate is found to be fraudulent, the employee may be disciplined.

ALGERIA

In dealing with an unjustified or short-term absence, or the submission of a fraudulent medical certificate, an employer’s qualification of such behaviour is important. The employer should take into consideration the seriousness of the misconduct, the circumstances under which these actions were committed, the prejudice caused, and the conduct of the employee before taking action. Depending on the seriousness of the misconduct, such behaviour can lead to a dismissal.

EGYPT

Any absence must be justified by the employee (e.g. by submitting a medical certificate). An unjustified absence may be regarded as a form of misconduct and may lead to disciplinary action being taken, including suspension or dismissal. Pay for the days not worked may also be deducted from the employee’s salary. It is considered a serious misconduct if an employee is absent without a valid reason for more than 20 days per year or for more than 10 consecutive days, provided that the employee is first warned in writing by the employer after 10 days’ absence in the former case and after 5 days’ absence in the latter case. Before imposing a sanction of dismissal, the employer must submit a request to do so to a “Committee”. The employer must agree to any absence, even if it is short-term. If the employer does not agree to such an absence, and if such absences are frequent enough, such behaviour can lead to disciplinary action. Submitting a fraudulent medical certificate to an employer may be qualified as misconduct and may justify disciplinary action.

HONG KONG

Whether an unjustified absence from work is sufficiently serious to warrant summary dismissal is a question of act and degree, and is dependent on the circumstances of each case. If unjustified absences are frequent, such behaviour may amount to serious misconduct for which the employee may be summarily dismissed. With regard to short-term absences, the employer’s reaction depends on the reason why the employee is absent. Under the Employment Ordinance, the employer is obliged to pay an employee sick leave for up to a maximum of 120 days. If an employee submits a fraudulent medical certificate, he/she is guilty of fraud and/or dishonesty, and the employer may summarily dismiss the employee.

INDIA

An employee is required to obtain the employer's permission before taking leave. Indian courts have held that the habitual unauthorised absenteeism of an employee may amount to misconduct, and thus the employee’s employment may be terminated without notice or payment in lieu of notice. However, the misconduct should be clearly proven in disciplinary proceedings held in accordance with the law and the principles of natural justice. It is important that the employer incorporates in its employment policy the procedure for granting leave and the consequences of unauthorised absence. Taking leave on the basis of a fraudulent medical certificate may amount to misconduct and may be a ground for termination of the employment relationship.

Back to top

INDONESIA

Employers typically regulate unjustified absences in company regulations or in a collective labour agreement (“CLA”) where there is a union. If the company regulations or the CLA is silent on unjustified absences, an employer may issue a management directive on the issue, as well as an explanation of the consequences flowing from such conduct. Usually, unjustified absences will constitute a violation of company regulations, and such conduct may result in the issuing of warning letters and/or termination. Under the Manpower Law, absence without authorisation for 5 consecutive working days will be deemed a resignation, provided the employer has summoned the employee twice in writing during the 5 day period. Falsifying medical certificates can constitute a criminal act under Indonesian law. Typically, this act is regulated in company regulations or a CLA as serious misconduct justifying immediate termination by the employer.

ISRAEL

An employer can deduct pay from the employee’s salary for unjustified or short-term absences of an employee. If the employer can prove that a medical certificate submitted by an employee is fraudulent, this may be grounds for termination of employment.

JAPAN

Employers may take disciplinary action for the unjustified or short-term absences of an employee if so provided by the rules of employment, which stipulate the disciplinary action which may be taken, including reprimand, reduction of pay, suspension, demotion and dismissal. If an employee is absent without permission, or for an unreasonable reason, he/she may be subject to disciplinary action. If an employee submits a fraudulent medical certificate, the employer may take reasonable disciplinary action as stipulated in the rules of employment.

KENYA

Under the Employment Act, 2007 (the “EA”), an employer must have in place disciplinary procedures that are communicated to employees. The normal procedure is usually to issue warning letters and then to dismiss the employee summarily if the employee’s conduct does not improve after one or two warnings. Section 44 of the EA provides that absence from the employee’s place of work without leave or other lawful cause is a justifiable ground for summary dismissal. Short-term absences can be taken as leave from the employer in line with the leave-taking procedures of the employer. Absence from the workplace without leave is a ground for summary termination under section 44 of the EA. The EA provides for entitlement to sick leave provided that the employee submits a certificate signed by a duly qualified medical practitioner. If an employee submits a fraudulent medical certificate, this can be dealt with under the employer’s disciplinary procedures. It would also constitute leave without lawful cause, which is a ground for summary termination under the EA.

KOREA

Employers with 10 or more employees have Rules of Employment (commonly referred to as the ‘employee handbook’), which regulate the working conditions affecting the employees (e.g., working hours, holidays, wages, absence, leave, wages, code of conduct, as well as disciplinary action). Based on the Rules of Employment, the employer can take disciplinary action against employees who violate provisions of the Rules of Employment regarding absences, leave, working hours, etc. However, in practice, employees who act in minor violation of the Rules of Employment are subject to personnel evaluation, and not to disciplinary action. Nevertheless, an employee who repeats the same mistakes (e.g., frequent unjustified absences) by not abiding by warnings issued by their employer may be subject to disciplinary action.

Back to top

LIBYA

Being absent from work without a valid reason for more than 20 days in one year, or more than 10 consecutive days may be considered as a form of serious misconduct, which may lead to a dismissal without indemnities and notice. Short-term absences depend on the internal regulations of the employer. If too frequent, however, they may be considered as a fair ground of dismissal. If the submission of a fraudulent medical certificate to an employer is proven, it may be viewed as a fair ground of dismissal or as serious misconduct that may lead to disciplinary action, including a warning or suspension.

MAURITANIA

The law establishes when an absence is considered justified (e.g., sickness, public holidays, personal circumstances, marriage, etc.). An unjustified absence may be regarded as misconduct and may lead to disciplinary action being taken, including dismissal. Pay for the days not worked may also be deducted from the employee’s salary. Any absence, even one that is short-term, must be agreed to by the employer. Any disciplinary action depends on internal company regulations, and, for short term absences, employees may face disciplinary action if such is warranted by the company’s regulations. In cases where an employee has taken sick leave, an employee must prove the sickness by submitting a medical certificate. If the employer suspects that the medical certificate presented by the employee is fraudulent, the employer has the right to ask for a medical control by the company’s doctor.

MAURITIUS

Depending on the reason, both unjustified and short-term absences can be excused by the employer; otherwise, the employee may be warned verbally and, if the absenteeism persists, the employee may be given a written warning and finally disciplined for his/her absenteeism. The disciplinary action may lead to termination of employment.

MOROCCO

Unjustified absenteeism is considered as a form of misconduct and may lead to disciplinary action being taken, including suspension. Pay for the days the employee did not work may be deducted from the employee’s salary. The absence of an employee for more than 4 full days or 8 half-days may be viewed as serious misconduct, and may lead to disciplinary action being taken, including suspension and dismissal without notice. Submitting a fraudulent medical certificate may be viewed as a breach of trust and a serious form of misconduct, which may warrant suspension and/or dismissal. A second medical examination of the employee may be conducted by the employer, if the medical team suspects that the employee was not sick.

NEW ZEALAND

If an employee is absent for an extended period of time without good cause, the employer may determine that he/she has abandoned his/her employment. However, before an employer can treat the employment relationship as terminated, it must make reasonable effort to contact the employee and discover the reason for the absence. Only then can disciplinary action be taken. Falsifying a medical certificate may be treated as misconduct or even serious misconduct by the employer. If treated as misconduct, the falsification may result in disciplinary action such as a formal warning. If treated as serious misconduct, it may result in the employee being dismissed from his/her position.

NIGERIA

An unjustified absence from work may be viewed as a form of misconduct sufficient to justify dismissal. Accordingly, where an employee stays away from work for a considerable length of time without the employer’s consent, such action may be viewed as misconduct for which the employee may be penalised in accordance with the terms of his/her contract of employment. The consequences of an unauthorised short-term absence for an employee depend on the terms of the employee’s contract of employment. Within the context of the World Cup where, for instance, an employee might be absent for a few hours to watch a match, such absence, if unauthorised, could lead to sanctions depending on the contract of employment. The employer’s course of action where an employee submits a fraudulent medical certificate depends on the terms of the contract of employment between the employer and the employee. An established principle of Nigerian labour law is that an employer may terminate the contract of employment of an employee for good reason, bad reason, or no reason at all. Accordingly, even if not expressly provided in the contract of employment, the employer may choose to terminate the contract of employment of an employee who submits a fraudulent certificate in order to justify his/her absence from work. Our usual advice to clients is that the employer simply informs the employee that his/her services are no longer required and that the employer should observe the applicable notice period. The employer need not give any reason for terminating the employee’s contract of employment.

Back to top

OMAN

Article 40 (4) of the Omani Labour Law permits an employer to dismiss an employee if he/she is absent from work without reasonable cause for more than 10 days during a one-year period, provided that written notice is served on the employee after the 5th day of the employee’s absenteeism advising the employee that in the event that he does not return to work after the 10th day of his absence, he will be dismissed. In addition, an employer can dismiss an employee, who is absent from work for a period of 7 consecutive days, without notice. Article 66 of the Omani Labour Law requires an employee to prove his/her sickness by submitting a medical certificate. In the case of a dispute, i.e., if the employer suspects that a fraudulent medical certificate has been provided, the matter will be referred to a Medical Commission for decision, which decision will be final.

SAUDI ARABIA

Pursuant to Article 80/7 of the Labour Law, an employer may terminate an employment contract without an award, advance notice, or indemnity if "the worker is absent without valid reason for more than twenty days in one year or for more than ten consecutive days, provided that the dismissal be preceded by a written warning from the employer to the worker if the latter is absent for ten days in the first case and for five days in the second". The employer must provide the employee with an opportunity to state his/her reasons for objecting to the termination. Article 80/7 of the Labour Law may also apply to short-term absences. Submitting a fraudulent medical certificate is considered a form of misconduct; therefore, employers can terminate the employee's contract pursuant to Article 80/3 “if it is established that the worker has committed a misconduct or an act infringing on honesty or integrity".

THAILAND

An unjustified absence entitles the employer to withhold pay, and, if for 3 or more consecutive days, terminate the employee’s employment without notice or compensation. Unjustified, short-term absences would, in most instances, constitute a breach of the work rules, which would constitute a ground for terminating employment without notice or compensation if a written warning had been given and if the offence was repeated within 12 months. The law requires that the work rules be registered with authorities and posted at the workplace by any employer of 10 or more people. Submission of a fraudulent medical certificate would constitute grounds for termination of employment without notice or compensation.

TUNISIA

Unjustified absences are considered a form of misconduct and may lead to disciplinary action, such as dismissal without notice (Article 14–8 of the Labour Code). Frequent short-term absences are also considered a form of misconduct and may lead to disciplinary action including suspension and dismissal without prior notice. Submitting a fraudulent medical certificate may be viewed as gross misconduct and may lead to a dismissal without notice.

UGANDA

An employer’s reaction to an employee’s absence largely depends on the employer’s policies and regulations. Both unjustified and short-term absences may be regarded as misconduct and may lead to disciplinary action including suspension (unjustified) or a warning or suspension (short-term). The submission of a fraudulent medical certificate will be regarded as a form of misconduct and may also lead to disciplinary action including suspension and dismissal.

Back to top