Please Take A Leave Of Absence For A Visit.

Mr. Song, a white collar in a foreign company working in Shanghai, was granted permission to ask for a family visit. However, he did not go home to visit relatives but went abroad to travel and visit friends.

After the company was informed, it was considered that Mr. Song's trip abroad under the name of visiting relatives was obviously against the integrity, and it constituted an absenteeism, thus relieving his labor contract.

Mr. Song was hard to accept and applied for labor arbitration. The Arbitration Commission ruled that the company should pay wages before the expiration of the labor contract and the annual leave.

The company filed a lawsuit against the court because it refused to accept the arbitration result. The court of first instance found that the company's act was lawful.

Mr. Song refused to appeal. Recently, the court of second instance upheld the first instance judgment.

Does the abuse of family leave constitute absenteeism? How should we use family leave? Reporters interviewed experts on these issues.

"I think the abuse of parental leave in this case is absenteeism."

Xu Yuling, a lawyer of Jingshi law firm, told reporters that "after he had finished his family visit, he did not visit relatives." this violated the original intention of visiting relatives, which was equivalent to denying his behavior of visiting relatives. It turned out to be a family leave but no real vacation and no job.

This is a kind of absenteeism, just like applying for sick leave but not getting sick.

From another point of view, there are special treatment for family leave, such as the wages are paid, according to the circumstances, the journey is false, and the fare can be reimbursed. If we do other things in the name of Hugh's family visit, but enjoy all kinds of welfare benefits of visiting relatives, it is against the integrity and is unfair to the employers.

Xu Yuling's view is basically the same as the verdict.

The judgment of the court of second instance pointed out that Mr. Song used deception to obtain family leave, and actually did not visit relatives on vacation. Therefore, his application for visiting family leave but not travelling abroad for work was a absences without justifiable reasons.

Shanghai Baoshan District court judge Tang Qisheng also holds the same view.

He believes that the purpose of setting up a family visit is to solve the problem of long-standing relatives who live in different places.

If the unit explicitly stipulates that the abuse of family leave is handled according to absenteeism, and the degree of abuse of employees is too serious, contrary to general public knowledge, if the family visit is used to travel abroad alone in this case, the unit can be processed according to absenteeism, and the labor contract can be terminated after the procedures such as notification Union and others have been carried out in accordance with the law.

In addition, the abuse of family leave is also against integrity.

Many large enterprises, especially foreign enterprises, have a zero tolerance attitude towards their violation of integrity.

In the process of hearing cases, we also tend to respect this attitude of enterprises. This also helps to encourage good faith in society.

The national normative legal documents clearly stipulate family leave are mainly the regulations of the State Council on the treatment of visiting relatives by employees in 1981, which only stipulates the permanent workers who have worked in the state organs, people's organizations and enterprises owned by the whole people and institutions for a full year, and enjoy the treatment of family leave.

There is no law on whether or not employees of non-state-owned enterprises and institutions have family leave. Generally speaking, the employer is prescribed as a welfare holiday for employees according to the actual situation.

Li.

In addition, the law does not specify the form and place of vacation for visiting relatives.

So how do I rest on family leave? Is it limited to the real place of residence to visit relatives? Can I take relatives to travel? If I take 10 days to visit relatives and go home for the first 5 days, do I have to spend the next 5 days traveling alone?

"I disagree with the court's decision in the case.

In the unit rules and regulations, it is clearly stipulated that family leave must go between relatives' places of residence and work place. Although the behavior of employee's abuse of family visit is indeed in violation of the provisions of the unit, it is far from serious.

This question is fundamentally a judgement of the seriousness of employees' violation of rules and regulations.

I think this situation is "excessive and severe dismissal".

Even if the family visit is abused, it violates the integrity, but this kind of dishonesty behavior is only a behavior flaw, and it has not caused serious losses to the company, and should not be taken as the reason for the termination of the labor contract.

Li Jianfei, Professor of Renmin University of China and director of the Institute of labor and social security law, talked about his views.

"In our country, the judgment of the above two" serious "judgments is generally dependent on the discretion of the judges. There is neither relevant legal restriction nor a large number of judicial precedents to be followed.

Therefore, different judges may have different discretion. This is the case. "

Li Jianfei said.

The reporter searched the Chinese referee's official website and found that a court in Shanghai had heard a similar case in 2014.

Ms. Wang was relieved from the employment contract in strict accordance with the employer's rules and regulations for applying for marriage leave. The court finally held that although the way of the employee's marriage leave was not proper, the marriage leave belonged to the worker.

Such acts do not constitute absenteeism or serious violation of the rules and regulations of the unit. The act of terminating the labor contract is inconsistent with the law and has no basis for law.

"In addition, even if the behavior of abusing visiting relatives is contrary to integrity, it is also a category of personal integrity, which is not linked to the labor relationship between employers and workers.

In other words, no employer can ask his employees to be Lei Feng, a moral paragon. "

Li Jianfei said.

"This is indeed a difficult problem to grasp and solve."

Xu Yuling said, "it is not necessary to understand the vacation method of visiting relatives.

Under normal circumstances, the leave of family visit should be returned to the place of residence of the visiting relatives, but it is acceptable to travel together with parents or spouses.

Whether it belongs to abuse, it is difficult to say that there is a unified standard of judgement in accordance with the specific circumstances and whether the workers have the purpose of visiting their relatives and so on.

Tang Qisheng also said: "except for normal.

In addition, other forms of vacations within the reasonable scope that the public can understand can also be accepted. If the unit has a clear stipulation, it should inform the unit or provide relevant proofs.

The main purpose of visiting relatives is to reunite with their relatives and not to restrict the form and place of reunion.

Part of the holiday visit, some holidays for personal travel, depending on the specific circumstances, if personal tourism is the main, it is certainly not appropriate.

In Li Jianfei's view, even if there are provisions in the rules and regulations of the unit, such as "visiting family leave must go between the real place of residence and the place of work", its function is mainly to reimburse the travel expenses.

"This does not mean that the vacation period is limited. After the workers apply to the employer for family leave, the vacation time should belong to their own rest time. As for the way to rest, it is the personal freedom of the workers. It is not appropriate for the employer to intervene."