Dismissal for unexcused absences and presentation of leave of absence after the event

May 4, 2023

Our Labor group analyzed a ruling regarding the temporality with which a worker must present medical leave to justify his absences from work.

On April 18, the First Labor Court of Santiago issued a final judgment (case RIT O-5671-2022) regarding a lawsuit for unjustified dismissal filed by a former employee against his employer, who had previously dismissed him on the grounds of unjustified absences and serious non-compliance.

Regarding the context of such dismissal, the plaintiff stated that he had been unjustifiably dismissed as of July 1, 2022, attributing to his former employer the fact that he had been absent from work on June 28, 29, 30 and July 1, 2022, in circumstances that although these days of absence were effective, it was due to medical leave that granted him a rest of 3 days as of June 28, and he went to the company on July 7 to leave the respective leave of absence.

For its part, the company – at the time of answering the lawsuit – defended itself by arguing that it was not effective that during the period in which the former employee was absent from work he had been on medical leave, nor did he give notice of such absences to his employer, The plaintiff had the obligation to have reported his absences, since the leaves, in order to be enforceable against the employer, had to be reported to the company within two working days, counting from the working day following the date of the beginning of the medical rest, which the former employee had not done.

Thus, he argued that, in the present case, the only thing that the plaintiff did was to go to the company’s offices only on July 7, 2022, presenting himself at that time with a medical leave issued in his favor only as of that day, and with a retroactive period of rest as of June 28, 2022.

In this way, the employer mentioned that the dismissal would be absolutely justified, because -in the first place-, the former employee never gave notice of his absences, despite the position of absolute relevance that he held within the company, and -also-, the absences had not been justified prior or contemporaneously to the date on which the employer sent him the respective letter of dismissal.

As a result of the above, the judge considered that given that the plaintiff’s absences between June 28 and July 1, 2022 were a fact recognized by both parties -employer and employee-, the dispute should be limited to “Determining whether the rest prescribed by the medical leave issued on July 7 (…) can be considered an exonerating element of the employee’s failure to comply with his obligation of attendance”.

In this way, the court decided that the dismissal was fully justified and in accordance with the law, because “In the court’s opinion, the medical leave issued by the plaintiff on the tenth day of the beginning of the absences attributed to the employee, that is, on July 7, 2022, in an attempt to cover absences that occurred a long time ago, in no way justifies them, being issued retroactively and after the date on which the company formalized the decision to dismiss the plaintiff”.

It continues, “In this sense, it is not reasonable for the termination of the labor relationship that the defendant has waited for the number of days that the employee claims to justify his omissive conduct, and it is not possible to consider that any medical leave issued after the termination of the labor relationship covers the absences. For this to occur, there must be some justification to explain the reason why the employee took so long to obtain them”.

In this way, the plaintiff tried to justify his absences by pointing out that he had been on medical leave for some time, which – in the court’s opinion – in no way “explains why the leave was issued more than a week after the absences occurred, so that the dismissal would be fully justified, even more so if the company waited a reasonable period of time so that the plaintiff could justify his absences, not being dismissed immediately, but waited for 4 days, terminating the contractual relationship on the third day after the attributed cause had occurred”.

For this reason, the court concluded that “Since the mere issuance of a medical leave issued days after the dismissal cannot be considered retroactively sufficient to justify the employee’s absences, the dismissal on the grounds of unjustified absences is in accordance with the law”.

In short, this ruling is interesting, since it pronounces on an issue that usually generates a lot of discussion regarding the temporality with which a worker must present the respective medical license justifying his absences from work, in view of the possibility of the employer to understand that the cause of unjustified absences is configured as a reason to terminate the employment contract.

For more information on these topics, please contact our #azLabor group:

Jorge Arredondo | Partner | jarredondo@az.cl

Jocelyn Aros | Senior Associate | jaros@az.cl

Felipe Neira | Associate | fneira@az.cl

Alejandra Figueroa | Associate | afigueroa@az.cl

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