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05 February 2020
In the event of disputes concerning absences from work, employees must provide proof of their agreement with their employer regarding leave requests; otherwise, their absence may be considered unjustified and could lead to dismissal.
A hairdresser was dismissed with notice on 15 February 2016.(1) Subsequently, she applied to the labour courts to have her dismissal with notice declared abusive.
The employer stated that the employee had been dismissed because of her:
The internal regulations stated that "any leave request must be made using the 'leave request' form". The employer highlighted the fact that the employee had signed her initials on each page of the internal regulations, signifying that she had read and understood the leave request procedure.
The employee stated that her dismissal had been notified during a protected period and therefore:
The labour court stated that the employee's absence on 11 February 2016 was unjustified because she had provided no proof that such leave would have been granted to her by the employer.
The court considered that one day of unjustified absence was enough to justify a dismissal with notice because this absence had disrupted the business's proper functioning. The court also noted the employee's short service – she had worked at the company for only five months prior to dismissal.
The court added that the employee had not provided a medical certificate within the statutory timeframe of three days for her illness period from 12 to 14 February 2016.
The employee appealed to the Court of Appeal. On 10 October 2019 the Court of Appeal confirmed that the employee's dismissal had been justified.
Late delivery of medical certificate
In the appeal proceedings, the employee no longer claimed protection against dismissal, but nevertheless alleged that her employer had acted hastily, especially since she had been unable to provide a medical certificate due to her illness.
The Court of Appeal agreed with the labour court that the employee had not provided a medical certificate to the employer before the end of her third day of absence (ie, before midnight on 14 February 2016). Thus, the employer had been authorised to dismiss the employee from 15 February 2016.
According to the Court of Appeal, the fact that the employee was physically incapable of submitting a medical certificate did not constitute a case of force majeure.
Unjustified absence and non-compliance with internal rules on leave
The employer alleged that the employee had ignored the company's leave procedure detailed in the internal regulations – by failing to request leave via the request form and obtain the employer's agreement or refusal in writing (the employee had made leave requests only via text).
After noting that the employee had been aware of the leave procedure because she had initialled each page of the internal regulations, the Court of Appeal stated that:
When an employer requires a formal request of leave it is not only with the aim of organising the leave of all employees as well as possible, but also with the aim of allowing subsequent proof for both the employee and the employer that the leave has been requested and especially granted.
In addition, the court rejected the offer of evidence by witnesses regarding the employee obtaining leave for 11 February 2016 on the grounds that to admit such evidence would render the rules devoid of all meaning.
According to the Court of Appeal, all of the grounds – that is, the employee's failure to present a medical certificate within three days, her failure to comply with the internal rules on leave and her unjustified absence on 11 February 2016 – were serious and sufficient enough to justify the employee's dismissal with notice.
The Court of Appeal's decision has fully recognised the binding force of internal regulations on employers and employees – provided that the latter are aware thereof.
For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email (firstname.lastname@example.org or email@example.com). The Castegnaro website can be accessed at www.castegnaro.lu.
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