Attendance is a significant basic rule for employers to regulate employees' labor behavior. For many positions that cannot be measured merely based on the work results of employees, a series of strict attendance rules need to be adopted to ensure that employees provide labor fully and completely. When employees have false attendance behavior, it often means that employees have not provided sufficient labor and disrupted the management order of the employer. In this case, punishing employees with false attendance or even unilateral dismissal is an effective means of punishment and management from the employer.
This article will analyze cases involving false attendance, including one typical case released by the Beijing Human Resources and Social Security Bureau in 2019, and provide lawyers' view.
Typical case and judge interpretation
Yang is in charge of the project department of company A. After company A received a report about Yang, it then conducted an investigation and discovered that Yang used its power to record full attendance of absentees and made false attendance from January 2014 to July 2017. Yang did the aforementioned abuse of power to gain personal benefits. By doing so, Yang obtained over 80,000 yuan. On July 3, 2017, Yang submitted a written self-criticism to Company A admitting the above facts and handed over 80,000 yuan to Company A on the same day. With this in consideration, Company A issued a Notice of Termination of Labor Contract to Yang, citing that Yang violated the relevant provisions of the Company's Employee Handbook and terminated the labor contract with him. Yang submitted an arbitration application, declaring that he did not sign the Employee Handbook, thus he requested Company A to pay compensation for illegal termination of the labor contract.
The arbitration commission held against Yang. The reasoning is as follows: although Yang claimed that he had not signed the Employee Handbook and Company A failed to provide evidence to prove that the Employee Handbook had been made public or notified to Yang, Yang did make false attendance and embezzled wages. This type of behavior not only constituted irregularities for favoritism, it caused significant damage to the employer and violated the principle of good faith and basic professional ethics. Therefore, the result of arbitration was against Yang.
The employee in the above typical case used his/her position and powers to falsify other people's attendance records without the knowledge of employer and other employees, to defraud the employer of the labor remuneration. This behavior not only disrupted the normal attendance management order of the employer but also caused a large amount of property loss to the employer. The employee made a considerable personal gains as well. False attendance in practice can be broadly divided into two categories. One category is that the attendance subject is false, that is, the employee who punches the time card is not the employee himself, including entrusting others to punch in/out or accepting the commission of another person to punch in/out for others. The other is that the attendance content is false, that is, the employee checks in, but the employee does not attend the work (overtime, etc.) and does not provide work. Each type of false attendance includes a variety of different situations. This article explores two situations with false attendance subject: 1. entrusting others to punch the time card; 2. inconsistencies between the check-in location and the contractually agreed check-in location.
2.1.Entrusting others to punch the time card
For the first situation, the actual punch-in is not consistent with the employee's identity, but the employee still provides labor for the employer. This kind of situation is mainly a disruption to the normal management order of the employer, but it does not involve deceiving the employer's labor remuneration. According to the authors' research, false attendance subjects are common. In practice, there are two opinions on the adjudication of such cases:
The first opinion held that as long as attendance rules are regulated in company's rules and regulations, and the rules and regulations have fulfilled the democratic procedures, the false time card punching behavior of the employee can constitute a serious disciplinary violation, giving right to the employer unilaterally dismiss the employee. For example, in the case of (2014) Cheng Min Zhong Zi No. 529, the Chengdu Intermediate People's Court held that:
"It can be seen from the "Employee Handbook" that the respondent has strict requirements on employee punctuality and good faith. The "Employee Handbook" clearly stipulates that it is the employee's duty to punch time cards on time, and to punch time cards for others, to encourage or allow others checking in/out for any employee is a violation of the principles of punctuality and good faith. This is a serious violation of the company's labor discipline or rules and regulations which will lead to dismissal. This provision in "Employee Handbook" does not violate the prohibition of the law and should be seen as an act of the company to exercise its internal autonomous management power."
The second opinion held that, even if there are relevant provisions in the rules and regulations of the employer and the democratic procedures have been performed, if the employee has been falsely attending but still provides work for the employer during this period, the act cannot constitute a serious violation of labor discipline or the principle of good faith. The employer cannot unilaterally dismiss the employee. For example, in the case of (2014) Chao Min Chu Zi No. 03851, the People's Court of Chaoyang District, Beijing held that:
"The unfaithful use of the punching time card is a dismissible reason. The punching time card is a management system adopted by employers to record the attendance time of employees. Its purpose is to prevent employees from arriving late, leaving early, and being absent for no reason, and to ensure the normal attendance of employees. Is it a dishonest behavior to forget to check-in/out at work, not to check-in/out in person and ask others to check-in/out? It is our opinion that unscrupulous time cards should be limited to an employee that falsifies attendance records, entrust others to check-in at the normal attendance time while he/she miss work, is late or leaves early. However, if employee attends to work normally while others punch the time card for him/her, he/she does not have the purpose of falsifying attendance records, his/her behavior does not have the effect of falsifying attendance records, which is not a dishonest act."
2.2.Inconsistencies between locations
For the second situation, the authors researched a typical situation where, although the employee punched the time card in person, the location where the employee punched in was not the same where the employer and the employee agreed to provide work. In this case, it can be found that although employees have punched time cards, they did not do so at the workplace following the management requirements of the employer, creating difficulty for the employer to determine whether employee is providing work. Therefore, the unilateral dismissal of the employer is more likely to be considered a legal dismissal. For example, in the case of (2017) Jin 0116 Min Chu 80527, the court held:
"The plaintiff's work address is the defendant Weiguo Road Store. It should be at Weiguo Road according to normal working hours and accepted the management of the defendant Weiguo Road store. His check-in at other stores provided false working time nodes and destroyed the defendant's management order. The plaintiff acknowledged the fact of punching time cards at non-working places, and the defendant concluded that the plaintiff's behavior is "dishonest behavior of falsified attendance records" was reasonable and objective. The defendant's definition of "serious violation of rules and regulations" also conformed to the law. Therefore, the defendant and the plaintiff's termination of the labor contract shall be supported."
It can be noted that when the correlation between false attendance behaviors and the act of not actually providing labor is higher, the false attendance behavior of employees is more likely to be identified as a violation of labor discipline and the principle of good faith. (for example, in the aforementioned typical case, an employee forges the attendance records of others; in the case of (2017) Jin 0116, Min Chu 80527, employee attended at the non-labor contract service location). On the contrary, when employees actually provided labor to employer in accordance with the agreement between the parties despite the employee's false attendance behavior, (i.e. the case of (2014) Chao Min Chu Zi No. 03851), the legal risk will be higher if the labor relationship is terminated only based on the false attendance records.
Based on the authors' research results and working experience, the lawyers' suggestions for such cases are as follows:
1.1.If the employer has clearly stipulated false attendance rules in the "Employee Handbook" and other relevant documents, the employer shall strictly follow the termination procedure regulated in the "Employee Handbook" to reduce the risk of dismissal. For example, in the case of (2017) Yue 03 Min Zhong No. 477, the third stipulation of the punishment rules on the thirteenth page of the "Employee Handbook" stipulates that if the employee commits the same violation for the second time during the contract period, the company will give employee heavier punishment as appropriate until expelled. Article 7 (2) (19) of the "Labor Contract" stipulates that two violations during the period of employment constitute a serious violation. Although Liu did falsely report overtime, the unilateral dismissal by the employer was deemed to be illegal. The reason is that the employer did not comply with its punishment procedure. The employer directly fired Liu instead of giving him written warnings before termination.
1.2. For the collection of evidence of employees' false attendance facts, lawyers recommend that employers keep the employee's attendance videos and punch time card records. If the employer plans to discuss the false attendance with employees personally, the employer shall record or videotape the meeting. At the same time, the employer may also require employees to issue a "Written Self-criticism", a "Statement", etc. If the employee's false attendance relates to employer's cooperation companies (such as dealers), the employer may request the cooperation company to issue a "certificate".
1.3.Handle similar false attendance behavior with alike punishment. For example, in the case of (2017) Jin 0116 Min Chu 82796, the court held that when examining the dismissal of an employer, it should be considered not only from the level of legality but also from the level of rationality. In this case, the employer did not directly terminate the labor contract with other employees who had the same punch-in situation problem. The employer gave them a warning punishment and a fine of 100 yuan. Therefore, the employer's dismissal was not reasonable.
1.4.The employer has the right to conclude a "Mutual Dismissal Agreement" or other similar documents with the employee due to the false attendance. If both parties agree to waive all other rights or claims against the other party, as the agreed content does not violate the mandatory provisions of laws and regulations, there is a possibility that the "Mutual Dismissal Agreement" is deemed as an employer giving up the right to recovery.