Labor Law
Termination of Employment for Unlawful Absence: Rules, Conditions and Judicial Oversight
This summary outlines the practical rules for terminating employment based on an employee's unlawful absence, focusing on statutory conditions, formal procedures and judicial review. It explains the legal consequences of failing to comply with notice and procedural requirements and the employee's remedies.
Compensation and insurance
Labor Law
Updated: 26 March 2026
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This summary outlines the practical rules for terminating employment based on an employee's unlawful absence, focusing on statutory conditions, formal procedures and judicial review. It explains the legal consequences of failing to comply with notice and procedural requirements and the employee's remedies.
Key points
- Definition of Unlawful Absence and Burden of Proof
- Procedural and Temporal Preconditions for Employer Termination
- Judicial Review of Termination Legitimacy and Evidence Assessment
Useful for: Useful for initial reading and identifying questions that may need legal review.
This automatic summary is based on the published text. It is not legal advice and does not replace checking official sources and reviewing the facts with a qualified lawyer.
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Definition of Unlawful Absence and Burden of Proof
Article 28(h) does not define ‘‘lawful’’ or ‘‘unlawful’’ absence explicitly; judicial practice treats absence as lawful when authorized in advance by the employer or explained by force majeure circumstances such as illness supported by official medical reports or detention. Consequently, the employee bears the burden of proving the lawfulness of his or her absence; absence without employer authorization is presumed unlawful unless rebutted.
Procedural and Temporal Preconditions for Employer Termination
The statute requires two temporal thresholds for lawful termination due to absence: more than ten consecutive days or twenty intermittent days within a year of employment. The employer must also follow prescribed formalities prior to dismissal—a written notice sent to the employee’s address by registered mail and publication once in a local daily—thereby making the dismissal power conditional on procedural compliance.
Judicial Review of Termination Legitimacy and Evidence Assessment
Employer termination decisions are subject to substantive court review, which examines whether statutory conditions and formal steps were met and whether the absence was justified. Courts evaluate medical reports and witness testimony, assess employer abuse of rights, and exercise discretion in determining whether dismissal was unfair and which remedies are appropriate within the limits of the claim.
Legal Effects of Procedural Non‑Compliance and Remedies
Termination carried out without meeting statutory prerequisites or without the prescribed notice constitutes unfair dismissal under Article 25 of the Labor Law. The court may order reinstatement or award monetary compensation calculated on the employee’s last wage plus notice allowances and other entitlements. A claim must be filed in the competent labor court within sixty days of dismissal to preserve the reinstatement remedy.
Judicial Trends and Legislative Observations
The Court of Cassation has repeatedly emphasized compliance with the written‑notice and publication requirements and has recognized absences justified by medical reports or employer authorization in certain cases. Practical critiques of the current provision include ambiguity about the meaning of ‘‘year,’’ the publication requirement and the notice method; commentators have proposed clarifying the employment year, modernizing notification mechanisms and setting time limits for notice and return to work.
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Notice: This content is for general educational purposes and is based on a summary of the original source linked on the page. It does not substitute for official texts or advice from a licensed lawyer; verify the applicable statutes, amendments and dates and consult implementing court rulings or a qualified attorney before taking any legal action.
Frequently asked questions
Definition of Unlawful Absence and Burden of Proof?
Article 28(h) does not define ‘‘lawful’’ or ‘‘unlawful’’ absence explicitly; judicial practice treats absence as lawful when authorized in advance by the employer or explained by force majeure circumstances such as illness supported by official medical reports or detention. Consequently, the employee bears the burden of proving the lawfulness of his or her absence; absence without employer authorization is presumed unlawful unless rebutted.
Procedural and Temporal Preconditions for Employer Termination?
The statute requires two temporal thresholds for lawful termination due to absence: more than ten consecutive days or twenty intermittent days within a year of employment. The employer must also follow prescribed formalities prior to dismissal—a written notice sent to the employee’s address by registered mail and publication once in a local daily—thereby making the dismissal power conditional on procedural compliance.
Judicial Review of Termination Legitimacy and Evidence Assessment?
Employer termination decisions are subject to substantive court review, which examines whether statutory conditions and formal steps were met and whether the absence was justified. Courts evaluate medical reports and witness testimony, assess employer abuse of rights, and exercise discretion in determining whether dismissal was unfair and which remedies are appropriate within the limits of the claim.
Sources and references
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