Dismissal for Absenteeism: The Supreme Court's Rules

The Employer’s Logic vs. the Court’s Logic

Most employers are convinced: absenteeism is a serious breach of workplace discipline, and the mere fact of an employee being absent is sufficient grounds for dismissal. Article 81 of the Labour Code appears to support this.

However, the Supreme Court has consistently developed a different position: dismissal is a last-resort disciplinary measure, and its application must be proportionate to the severity of the offence.

What the Employer Must Prove

For a lawful dismissal on grounds of absenteeism, the employer must document and prove in court not just the fact of absence, but also:

1. The exact duration of absence — absenteeism is defined as being absent for more than four consecutive hours during a working day. If the absence was shorter, dismissal is not an option; a lesser disciplinary measure may be applied.

2. The absence of a valid reason — the employer must request a written explanation from the employee. If no request was made, or the employee was not given the opportunity to explain, dismissal is unlawful regardless of the circumstances.

3. Actual harm to the production process — the Supreme Court directs courts to assess the proportionality of the sanction. If the employee’s absence caused no real harm in practice (the position could be covered, tasks redistributed), the court may find the dismissal unjust and reinstate the employee.

Common Employer Mistakes

Failing to request an explanation. Article 193 of the Labour Code requires giving the employee two working days to provide an explanation. Failure to do so is grounds for reinstatement even when the fact of absenteeism is not in dispute.

Dismissing on the day the absenteeism is discovered. The employer must follow the procedure: absence report → request for explanation → waiting two working days → dismissal order. Rushing makes the dismissal procedurally vulnerable.

Ignoring prior service record. The Supreme Court requires that when choosing a disciplinary measure, account be taken of the employee’s previous conduct, attitude to work, and length of service. A long-serving employee with an unblemished record who misses work once has a far greater chance of reinstatement than one who already has disciplinary sanctions on record.

Misclassifying the absence as absenteeism. If an employee worked remotely without the employer’s written consent — this is not absenteeism. If they were on sick leave but did not notify the employer — the question of whether the reason is valid remains open.

What an Unlawfully Dismissed Employee Should Do

The deadline for bringing a court claim in dismissal disputes is one month from the date of receipt of a copy of the dismissal order or employment record book (Article 392 of the Labour Code). This deadline is strict and missing it without good cause is critical.

Upon reinstatement through the courts, the employee is entitled to claim:

• reinstatement to their position,
• payment of forced-absence wages (for the entire period up to reinstatement),
• compensation for non-pecuniary harm (moral damages).

Frequently Asked Questions

Is an absence of fewer than four hours classed as absenteeism? No. Absenteeism under Article 81 of the Labour Code requires an absence of more than four consecutive hours. A shorter absence may attract a lesser sanction — a warning or reprimand — but not dismissal.

What happens if the employer failed to request an explanation before dismissing? The dismissal is unlawful regardless of whether absenteeism actually occurred. A court will reinstate the employee and order the employer to pay average wages for the entire period of forced absence.

How long does an employee have to bring a court claim for wrongful dismissal? One month from the date of receipt of a copy of the dismissal order or employment record book (Article 392 of the Labour Code). This is a strict and very short deadline — do not delay in seeking legal advice.

Can a long-serving employee with an unblemished record be dismissed for a single absence? In theory, yes, if the procedure is followed correctly. However, the Supreme Court requires courts to take previous conduct into account. An unblemished service record significantly increases the chances of reinstatement.

Read Also

• One Day’s Error: How a Procedural Slip in the Dismissal Process Reinstated an Employee
• The Employee Trap: When an Employer Provokes a Violation in Order to Dismiss

Were you dismissed for absenteeism and believe the dismissal was unjust? Contact us for a consultation: we will review the employer’s documents, assess your chances of reinstatement, and prepare a statement of claim.