Chile: Non-Attendance to Work Due to Illness Justifies Absence

The Chilean Supreme Court, on 23 November 2021, accepted a recourse seeking to reverse a ruling issued by the Second Labour Court of Santiago, which rejected a claim for unjustified dismissal and collection of benefits. The appeal for annulment filed by the employee was also rejected by the Court of Appeals.

The recourse known as “unification of jurisprudence” proceeds when there are different interpretations of a matter by Courts of justice. In this case, it was requested to unify the correct interpretation of article 160 N°3 of the Labour Code, regarding the justification for the non-attendance of an employee to work, requesting to confirm if a medical leave is reason enough, and if it is also required to be communicated in a timely manner to the employer.

In this case, the facts are that the employee was dismissed on 26 December 2018, due to absences as of 22 December 2018. However, on 22 December 2018, the employee was at an Emergency Care Service suffering from abdominal pain and on 27 December of that month, he was issued an electronic medical leave that provided for 5 days of rest, starting on 22 December 2018.

Note that under the Labour Code, the absence or non-attendance of the employee to work without justified cause for two consecutive days, two Mondays in a month or a total of three days in a month, is one of the grounds of termination for cause (no severance applies).

This ruling stands out for considering that non-attendance to work due to an illness, is a sufficient excuse that can be evidenced by any means, such as witnesses, hospital certificate or medical licenses, among others, without the need to give notice of the absence to the employer.

Consequently, a replacement ruling was issued by the Supreme Court of Justice, in which the dismissal was qualified as unjustified and therefore, the company was forced to pay to the employee, the compensation in lieu of prior notice of termination and severance.

Key Action Points for Human Resources and In-house Counsel

• An illness is reason enough for non-attendance to work, without the need to give notice to the employer.
• An illness to justify non-attendance to work can even be evidenced trough witnesses.