Absence

In the context of the cases notified to us, we think it important to describe the statutory provisions related to absence during this year as well. Under Decree 11/1994. (VI. 8.) MKM on the operation of educational institutions, pupils absent from a class have to justify their reason for absence. The rules governing the justification of absence have to be included in the rules of operation and organisation of the educational institution. Therefore, two things follow from the text of the law: first, any time when a pupil is missing from a class is considered as absence, and second, absence can only be considered to occur if the pupil is missing from the class. Under the statutory regulations, the primary obligation associated with absence from class is the justification of the reasons for the absence, with the requirement that the relevant rules are to be laid down in the rules of operation and organisation. If the absence is not justified, it is unjustified. When absence is not interpreted in conformity with the law, and when the rules of the institution contain unlawful rules as a result, this also endangers further educational rights. Under the law, unjustified absences entail serious legal consequences. Paragraph (3) of Article 75 of the Public Education Act stipulates that - with the exception of pupils of compulsory school age - a child's pupil status ceases when he or she is unjustifiably absent from compulsory activities of the school and this amounts to a certain time threshold.

Consequently, it cannot be considered absence when a pupil comes late to class.

One parent turned to us with the complaint that her child, who - due to traffic problems and other reasons - was 6-8 minutes late for school, and could not go to the first class. She said that pupils who are late for school must stay in the teachers' room and join the others after the end of the first class. The principal confirmed that, in accordance with their local rules, pupils who arrive late are automatically banned from the first class, and thus they miss the entire class. In our opinion, pupils cannot be forced to be absent from an entire class due to being late, as this violates the child's right to learning. Also, absence has very serious legal consequences. Pupils who are late cannot be punished with having to miss an entire class and to bear all legal consequences thereof. The school may use other sanctions to punish lateness. Being late cannot result in missing the entire class, even if the reason for such absence is justified by the school. Consequently, we found that the relevant rules in the internal rules of the school impair the pupils' right to learning, and therefore we initiated with the head of the institution to take the necessary steps to amend the relevant sections of the internal rules, in order to ensure that the local regulations are in conformity with the law with respect to determining the consequences of being late from class. The principal accepted our initiative. (K-OJOG-593/2002.)

We received several inquiries, by mail and over the phone, asking whether a pupil can be expelled from a school because of being often late. The inquirers who turned to us claimed that pupils living in the countryside often arrive late because of factors which they cannot be held responsible for, for example, traffic. As the idea and consequences of being late from the class are not regulated, they must be set forth in the school's rules of operation and organisation. Our opinion is that, because being late for a class is not being absent from the class, late arrivals cannot be treated as unjustified absence. For the protection of classes, however, other disciplinary actions, or even disciplinary proceedings may be applied as a sanction for being late. (K-OJOG-693/2002.)

One parent requested us to conduct an inquiry concerning the fact that a disciplinary proceeding was started against her child, because the child had over twenty unjustified absences. The parent's objection was that in several instances, the child's lateness for class was considered as absence. The head of the institution, however, informed the Office that under the rules of operation and organisation of the school, late arrivals from class cannot be treated as unjustified absence from class, but repeated instances of coming late entail a disciplinary proceeding. From the documents made available to us, we established that the institution's rules of operation and organisation sufficiently cover the issue of sanctions for being late. We also established that in conformity with the rules, the school did not include late arrivals among the unjustified absences, and thus we closed the case for lack of infringement. (K-OJOG-319/2002.)

Sending the children out from class raise similar issues. We received numerous inquiries about this issue as well. The issue of undisciplined behaviour of pupils in class is a complex one, as in this way, the pupil not only fails to fulfil his or her own duties, but also disturbs teaching in the class, prevents the others from exercising their right to education, and hinders the teacher in doing his or her job. It is therefore justified that this behaviour is not left without consequences, but sending the pupil out cannot be used for as a sanction. In our opinion, a pupil may only be sent out from the classroom if this is necessary to protect the rights of others or the other rights of the pupil in question. In each case, the teacher has the right and responsibility to decide whether a pupil has to be sent outside. Irrespective of which minute of the class when the pupil is sent outside, this cannot automatically last until the end of the class, but only for the necessary period. Additionally, the supervision of any child sent out from the classroom needs to be ensured. (K-OJOG-28/2002.)

The case when, due to a large number of absences, a pupil cannot meet his or her duties of learning is governed by the provisions of law. In such cases, the pupil has been absent from a significant portion of the classes, the pupil's learning achievement could not be tested, and thus teachers cannot determine the grade at the end of the first term or at the end of the year. Inquirers about this issue were given the following information.

Pursuant to Section d) of Paragraph (6) of Article 20 of Decree 11/1994. (VI. 8.) MKM, pupils whose total number of missed classes (both justified and unjustified) accumulated over one academic year for a certain subject exceeds thirty per cent of the relevant classes, and whose study performance cannot be evaluated by grading in the course of the year, may not receive a mark at the end of the academic year, unless the teaching staff authorises the pupil to sit a grading examination. The teaching staff may refuse the grading examination if the number of unjustified absences exceeds the number of justified ones, provided that the school had fulfilled its notification obligation. A pupil who could not receive a grade at the end of the year can only continue his studies by repeating a year. If the number of classes missed by a pupil already exceeds the specified number by the end of the first term, and the pupil's progress cannot be assessed in the form of marks, the pupil is required to take a grading examination at the end of the first term. It follows from these rules that the only case when a pupil who has missed more than thirty per cent of the classes in a given subject cannot receive a grade at the end of the academic year if his or her learning achievement could not be assessed in the form of marks during the year, due to absences. If the subject teacher thinks that the pupil's progress can be evaluated on the basis of grades, the pupil does not need to take a grading examination. When such progress cannot be evaluated, the teaching staff may authorise the pupil to sit a grading examination. (KOJOG-117/2002.)

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