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Ten Typical Cases of Labor Disputes With Senior Executives Ⅲ


On December 4, 2020, the Beijing Intermediate People’s Court No. 1 held a press conference to inform of labor disputes involving senior executives in recent years and issued the "Beijing’s Ten typical labor dispute cases." River Delta Law Firm conducted a comprehensive interpretation of the ten major cases and put forward corresponding management suggestions for employers.

Case 3: Senior Executive Must Comply With the Attendance System
A company executive under irregular working hours system still needs to comply with the employer’s attendance management regulations.
Fu joined a company as a senior manager on November 18, 2003. The labor contract signed by both parties stipulates that absenteeism for two consecutive days or three days in six months is a serious violation of rules and regulations. The company can terminate the labor contract without giving any economic compensation. On July 5, 2016, the company issued a Notice of Termination of Labor Contract to Fu. The notice stated that Fu had been absent from work for 12 days from June 12 to July 5, 2016, and seriously violated the labor contract agreed both parties. Later, Fu brought a lawsuit to the court on the grounds that the company illegally terminated the labor contract. Fu advocated that he implemented irregular working hours system and the company does not manage his attendance, thus there was no absenteeism. After the trial, the court held that, on the premise that Fu knew that a company had a clear leave system, even if he was an executive who implemented the irregular work system, he still should abide by the employer’s attendance management regulations, and therefore rejected Fu’s litigation claims.
Judge Interpretation
In practice, the work content and nature of some company executives are quite special, and they implement an irregular work schedule. The purpose of the irregular work system is to improve work efficiency by arranging working hours flexibly. Although there are no fixed requirements for commuting and attendance, it does not mean that you can attend irregularly at will. The company's senior executive is both employee and manager. As a worker, he should abide by the various rules and regulations including the attendance management system formulated by the employer.
Lawyer's suggestions
Attendance system is an important basic system for employers to regulate employees' labor behavior. For many positions where employees’ work cannot be measured purely through their work results, a strict attendance system is required to ensure that employees provide full and complete labor. Based on the particularity of their role, executives often implement irregular working hours.
In practice, there is a misunderstanding that the employer cannot perform any attendance management on executives performing irregular working hours. This case is to correct this misunderstanding. Senior executives are the first category of personnel permitted to implement the irregular working system in Article 4 of the Notice on Issuing the Measures for the Examination and Approval of Flexible Working Hours Arrangement and Comprehensive Working Hours Scheme Adopted by Enterprises. However, employers still have the right to manage attendance and leaves in accordance with the rules and regulations and senior executives should still perform the corresponding leave approval procedures. If there is a violation, the employer has the right to handle the violation of discipline according to its rules and regulations.
Employers should consider
1. In order to avoid the risk of overtime pay, apply for an irregular working hour system for senior executive in accordance with the law, and expressly agree on it in the labor contract;
2. Clearly stipulate the attendance, leave process, approval and other requirements of senior executives through attendance and leave and other rules and regulations, and timely manage various leave records of senior executives;
3. Respond promptly to leave applications, and determine whether to approve the nature of the leave and the reason for the leave and notify timely;
4. If there is a serious violation of leaves and attendance causing rescission of labor contract, a pre-assessment shall be sufficiently performed to reduce the legal risk of dismissal.

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