Recently, the Changping District People’s Court in Beijing released the White Paper on Labour Dispute Trials and Integrity Building (2018-2022), listing 10 model cases in labour disputes for judicial reference. One of the cases, involving false sick leave, is worth the attention of employers.
What happened?
An employee surnamed Xiao joined a public transport company in 2006 as a driver. In July 2019, Xiao visited Xiyuan Hospital and submitted proof of leave to the company, applying for sick leave from 9 July 2019 to 15 July 2019. According to the leave certificate issued by the hospital, dated 8 July 2019, Xiao suffered from cervical spondylosis, and it was recommended that he took a week off work.
After some investigation, the company found that the leave certificate was in fact issued by a traumatologist at Xiyuan Hospital on 2 July 2019. Xiao’s name was nowhere to be found in the hospital’s outpatient logs on 8 July, and the handwriting on the certificate bore signs of alteration.
On the grounds of continual absenteeism and serious violation of the company rules and regulations, the company terminated its contract with Xiao.
Outcome of adjudication
Xiao initiated labour arbitration, which ruled that the company’s termination was illegal, and that the employment contract should be upheld. However, in the subsequent first and second instances of litigation, the court deemed the termination legal.
The grounds for legal termination, as related by the court, are as follows. According to the company policy, failure to submit a diagnostic certificate for sick leave as required, or obtaining, altering or falsifying leave certificates by improper means, shall be treated as absenteeism.
Absenteeism for three consecutive days or five days within a 12-month period constitutes serious violation of the leave and attendance system, and the employer may terminate the labour contract.
In this case, the certificate was issued by the hospital on 2 July 2019, but Xiao did not actually attend the clinic on that day, and the date was altered from 2 July to 8 July. According to the statement issued by the hospital, the certificate was irregularly issued by the doctor as a “favour”.
In addition, the supplemental medical record submitted by Xiao was not stamped with the special seal for sick leave, and did not conform to the conventional format for issuing leave certificates by Xiyuan Hospital.
Based on these factors, Xiao’s sick leave from 9-15 July 2019 should be treated as absenteeism, and the company dismissal was legal.
The takeaways
In practice, falsified sick leaves are as numerous as they are diverse, with depression, cervical spondylosis and lumbar disc herniation being some of the most common pretences. In order to eliminate such behaviour, employers should firstly set up sound rules and regulations, and standardise the leave process.
It may be stipulated in the employee handbook that, when applying for a relatively long period of sick leave, employees should submit a complete record of medical treatment, in addition to the usual certificates.
If suspecting falsified sick leave slips, a representative may be assigned to investigate and collect evidence at the relevant hospital in order to verify the authenticity of the medical records and sick leave material.
In cases of no hospital registration, altered sick leave slips, or falsification of doctor’s signatures, there would be a high probability of false sick leave. In other cases of non-compliance with the hospital procedure, such as a long-term sick leave slip missing the seal of the medical office, while the medical condition was authentic, further judgment should be made in combination of other evidence.
In practice, false sick leave can be a tricky issue and may involve medical periods and other such issues. The judicial calibre for such disputes varies from region to region, which means employers must strategise on a case-by-case basis.
Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice.
You can contact Baker McKenzie by e-mailing Howard Wu (Shanghai) at howard.wu@bakermckenzie.com
