China: Wrongful Termination for Absenteeism Relating to Trans-gender Surgery

The employee was diagnosed as having transsexualism by Shanghai Mental Health Center. With the decision to perform the trans-gender surgery, the employee only verbally notified her supervisor shortly before the surgery and travelled to Thailand after the surgery. Certain information in the medical records, which were later provided by the employee, had been concealed and the suggested rest period detailed in the records was inconsistent. The employer considered that the employee failed to apply for sick leave in advance and provided medical records with flaws. As such, the employer terminated the employment for absenteeism. The employee challenged the termination and filed a lawsuit. The Court eventually ruled in favor of the employee and opined that: (1) the short notice regarding the sick leave was reasonable as it was a difficult decision to undergo the trans-gender surgery; (2) it was also reasonable to conceal certain information as provided in the medical records as the employee sought an expectation to preserve her privacy; (3) all medical records were verified to be valid and thus the longer rest period that had been suggested shall be applied; (4) the employee’s visit to Thailand was intended as part of her recovery following surgery and shall not be deemed as absenteeism; and (5) the employment was wrongfully terminated and shall be reinstated.