China: 劳动法最前线——从公司人事的角度看劳动法动向 第 165 回员工因被行政拘留不

Last Updated: 3 January 2018
Article by Broad & Bright

员工因被行政拘留不能上班是否属于旷工?

公司在进行日常经营管理过程中,有时会遇到员工(包括公司管理层员工)突然人间蒸 发,一连几天联系不上,既未上班也未向公司请假。事后经公司多方打听,该名员工可能因 违反相关治安管理法规的行为(比如赌博、打架、嫖娼等行为)而被公安机关处以行政拘留 处分。在这种情况之下,公司能否认定该名员工行政拘留期间属于旷工,并根据公司《就业 规则》的规定,以连续几天旷工严重违反公司规章制度为由,给予该员工解雇处分呢?本期 我们就来讨论一下这个问题。

一、法律规定

根据《劳动合同法》第三十九条第六项的规定,劳动者被依法追究刑事责任的,用人单 位可以解除劳动合同。但是,行政拘留仅仅是被公安机关行政处罚,不属于被追究刑事责任, 所以在员工被行政拘留的情况下,公司无法直接依据前述法律规定给予员工解雇处分。 另一方面,公司《就业规则》中一般会有"连续3 天旷工算严重违纪,公司可以解除劳 动合同"等类似条款,所以在这种情况下,公司一般比较倾向于对员工行政拘留情况下的不 上班按旷工处理,并以公司《就业规则》的规定为依据对其做出解雇处分。但是,员工因被 行政拘留不能上班是否属于旷工,法律上并没有明确的规定。

二、司法实务

关于员工因被行政拘留不能上班是否属于旷工,在相关司法案例中,存在以下两种截然 不同的意见:

1. 认为属于旷工。理由为:"劳动者提供劳动系其基于劳动法律关系所负有的基本义务, 无正当理由不提供劳动应属旷工。劳动者被行政拘留3 天而无法上班。劳动者的违法行为导 致其被限制人身自由而暂时丧失提供劳动的条件。虽然劳动者无法上班并非其故意所为,但 劳动者作为一个成年人应知晓实施违法行为可能导致其丧失提供劳动的条件,但劳动者主观 上放任该后果的产生。劳动者主观放任的态度导致其无法上班的后果应由过错行为人承担, 用人单位对此无容忍的义务" 1

2. 认为不属于旷工。理由为:"劳动者未能到单位上班系因被公安机关限制人身自由, 并不属于无故旷工,而单位未了解核实相关情况、未给予劳动者申辩的机会,即以旷工为由 解除了与劳动者的劳动合同,依据不足"2。

三、总结

员工因被行政拘留不能上班与普通的无故旷工存在一定的区别,公司在处理此类问题 时,可以按以下步骤谨慎应对。

1. 遇到员工未上班也联系不上的情况时,首先应向员工本人或其家属核实相关情况。 2. 在核实后确认属于因被行政拘留而不能上班的,需要结合员工本人是否有就该期间向 公司申请休假、公司所在地的相关司法判例等情况,综合判断是否可以按旷工处理,并依据 公司《就业规则》的相关规定给予处分。

Footnotes

1 相关案例为"(2011)青民四(民)初字第1674 号"。

2 相关案例为"(2016)鲁02 民终1958 号"。

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