Worker’s absence from work without due cause or employer’s permission is deemed as misconduct and subject to disciplinary actions. Absence from work due to sickness is permissible under the Labor Law of Cambodia.
This article briefly discusses legal rules governing worker’s leave because of private sickness under the employer-worker relationship. The rules of the social security schemes are not discussed here.
1. What does the Labor Law say about leave due to sickness?
Under Article 71 of the Labor Law, absence of the worker for illness which is certified by a qualified doctor is one of the reasons for the suspension of the labor contract. This absence is limited to 6 months, but can, however, be extended until there is a replacement.
Accordingly, it is understood that the maximum period of labor contract suspension due to worker’s private sickness is 6 months. After this six-month period elapses, the parties may extend the period of contract suspension until there is a replacement of the concerned worker. In other words, if the employer or worker does not agree with the said further extension, the labor contract may be terminated at the initiative of either party.
2. What are the rights and obligations of employer and worker during this period of contract suspension?
Based on the principle of “no work, no pay”, during labor contract suspension, the worker is released from obligation to provide labor or service to the employer while the employer is released from the obligation to pay wage to the worker. (Article 72, Labor Law)
Pursuant to Article 72 of the Labor Law, the suspension only affects these main obligations. However, other obligations such as providing of accommodation by the employer, as well as the worker’s loyalty and confidentiality obligations towards the employer or enterprise, continue to be in effect during the period of suspension. Furthermore, the suspension of labor contract does not suspend the union’s mandate or that of the workers’ representative. What is good for the worker is that the relation during suspension periods is also included or counted when calculating the employment seniority of the worker.
In practice, in order to attract new members and retain the incumbent workers in the establishments and enterprises, there is a tendency or practice that most of the employers provide workers with rights and benefits superior to rights and benefits defined in the Labor Law. That means employers pay wages to workers during the period of contract suspension to the extent defined in labor contracts, internal rules and/or collective agreements.
For example, the internal rules of the enterprise provide that the employers pay: 100% of salary for the first month and 60% of salary for the second and third months to the worker. From the fourth month up to sixth month, the employers do not pay salary to the workers but they maintain the employment relation with the concerned worker.
During this period of suspension, the employer may enter into a contract with someone to replace the sick worker who is temporary absent and terminate the said contract whenever the concerned worker returns to work. (Article 67, Labor Law)
In conclusion, sickness is one of the legal ground for suspension of employment or labor contract. Which is the measure provided by the Labor Law keeps the employment relationship.