Companies should treat their employees kindly and respectfully, and motivate employees to work enthusiasm in a reasonable and legal way; employees should also abandon the mentality of "fishing at work"——
Violating the principle of "good faith and diligence", what does the law say?
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The security guard was expelled for playing with mobile phones during work, which seemed to be within the scope of the enterprise's employment management authority, but because the security breach did not reach a serious level, the court ruled that it was illegally discharged.
In this regard, legal experts believe that companies can motivate employees to work enthusiasm through job transfer, performance and salary linkage, rather than harsh punishment at will; employees should also follow the principle of honesty and trustworthiness, and perform their duties in their work. .
Xiao Liu, a security guard in a community in Yubei, Chongqing, was monitored and photographed because he was playing on his mobile phone during work, and the owner complained that he was dozing off late at night. He was recently expelled from the security company. Xiao Liu filed a lawsuit to the court.
The court found that Xiao Liu's behavior did violate the company's regulations, but because his behavior did not reach the level of "serious" violations of discipline, it ruled that the property company should pay compensation for Xiao Liu's illegal termination of the labor contract.
"You go to work seriously, and the money you get is what you deserve. Only the salary you get from fishing is considered a windfall." This is a joke, but it coincides with many unspoken rules of the workplace.
"Fishing at work" generally means that you do not work well during working hours, and you always go on small errands, such as being lazy, playing tricks, and using Weibo to take up your contract time to do your own things.
In fact, among the workplace topics, the popularity of "fishing at work" has not been low. Both the executives of large companies and the bosses of small companies hate the "fishing" behavior of their subordinates. They are like Xiao Liu. It is inevitable to be "expelled".
Legal experts here pointed out that the concept of "serious violation of discipline" should not be abused by employers and should be based on a reasonable and reasonable perspective to examine whether the violation of discipline has reached the level of termination of the labor contract.
Otherwise, the company will bear legal risks; at the same time, employees should also be honest and trustworthy, not only to avoid "fishing at work", but also to work hard to fulfill their obligations of "honesty and diligence".
Executives were dismissed and demand compensation was rejected
Li was originally an engineer of a Beijing Quality Technology Co., Ltd., and was later sent to Chongqing to serve as the company's regional head because of taking care of his family.
The labor contract signed by both parties agreed: Li promised to abide by the "Employee Handbook" and various rules and regulations of a Beijing Quality Technology Co., Ltd., and agreed to complete the tasks assigned by the company with all his time and energy within the specified working hours. Strictly protect corporate secrets and safeguard the company’s reputation and interests.
While working in Chongqing, Li and others jointly established a Chongqing Logistics Co., Ltd., and Li served as the controlling shareholder of the company and later became a supervisor of the company.
In the name of the company, it signed a warehousing service contract and a distribution service contract with a Beijing Quality Technology Co., Ltd. for 5 consecutive times.
In April 2019, after receiving the report and verifying it, a Beijing Quality Technology Co., Ltd. issued a "Letter of Dissolution of the Labor Contract" to Li: "You violated the provisions of Chapter 10 of the company's "Internal Regulations". Your labor contract will be terminated on the 30th. The above reasons and decisions have been notified to the labor union in advance."
The reporter saw in the company’s "Internal Regulations" and "Employee Handbook" that Chapter 10 "Reward and Punishment System" stipulates: part-time, private work, or misappropriation of the company’s name to engage in similar business outside or engage in any behavior that conflicts with the company’s interest. If it is a serious violation of discipline, the company can terminate the labor contract.
Li was dissatisfied with this, so he applied for labor arbitration and asked the company to pay 340,000 yuan in compensation for illegal termination of the labor contract.
In June 2020, the Chongqing Arbitration Commission issued a "Certificate of Overtime Untrial Cases", and Li sued the court.
After the final review of the two trials, the Chongqing No. 1 Intermediate People's Court made the following judgment a few days ago: Li is not only a quality engineer of a Beijing Quality Technology Co., Ltd., but also a controlling shareholder and supervisor of a Chongqing Logistics Co., Ltd., and represents a Beijing Quality Technology Co., Ltd. and a Chongqing company. Logistics Co., Ltd. signed a warehousing distribution service contract.
Regardless of whether the pricing of the above-mentioned contract is reasonable or not, Li's above-mentioned behavior is a behavior that conflicts with the company's interests and violates the employee's obligation of loyalty, and should be evaluated negatively by the law.
Therefore, a Beijing Quality Technology Co., Ltd. legally terminated the labor contract and should not pay compensation to Li.
In an interview with reporters, the trial judge of the case said: Compared with ordinary employees, senior managers should perform higher loyalty obligations to the enterprise.
If the senior management does not actively disclose to the company its associated transactions with the company, it has violated the obligation of loyalty, and the company has the right to unilaterally terminate the labor relationship with the senior management without any actual loss.
In this case, when the reporter interviewed, some people in the legal profession believed that this has gone beyond the scope of "fishing at work" and has broken the bottom line of employees' honesty to the company.
This employee has not fulfilled his duty of "honesty and diligence".
This case should be a reminder to workers.
After returning to work training, the examination is still unqualified and the contract is terminated
In the past two years, affected by the epidemic, companies have generally faced greater cost pressures. As workers receiving labor compensation, they should also be obliged to work diligently to their units during working hours, and they are in the same boat as the company.
If you are always unwilling to take the initiative to act, make a living, and fail to meet the job requirements, according to the relevant provisions of the "Labor Contract Law", the employer should conduct training or adjust the job position for the incompetent workers.
If the employer is still incapable of the job, the employer may terminate the labor contract after informing the employee in writing 30 days in advance or after paying the employee an additional month’s wages.
In January 1986, Li joined a company of State Grid to work as a boiler worker.
On November 25, 2008, Li Moumou signed an agreement with a State Grid company to retain the labor relationship and go through the formalities of leaving the job without pay.
In 2017, a company from State Grid notified Li Moumou to give him transfer training in accordance with relevant regulations of State Grid.
Li Moumou signed and agreed to participate in the training on the "Notice on the Immediate Return of Unpaid Persons Remaining to the Company" on November 8, 2017.
On April 17, 2018, the "Training Situation Form for the Training Course for Returned Persons Without Pay (Phase 2)" recorded "Li Moumou failed to drop out of school for 3 re-examinations".
On May 18, 2018, a State Grid company issued a "Notice of Dissolution of the Labor Contract" to Li Moumou on the grounds that he was not qualified for the job transfer training.
Li XX filed a lawsuit after arbitration, requesting confirmation that the "Notice of Dissolution of the Labor Contract" is invalid, and ordered a State Grid company to continue to retain the labor relationship with Li XX.
The judge in the trial held that Li Moumou left the front line of work for more than ten years due to suspension of pay and staying at work. Due to changes in the objective situation, the boiler job position has long ceased to exist. A State Grid company organized Li Moumou to participate in return-to-work training. Necessity and rationality.
After returning to work for training, Li Moumou failed to pass the examination for many times and was unable to meet the current job requirements.
Therefore, the termination of the labor contract with Li Moumou after a State Grid company has performed legal procedures does not constitute an illegal termination of the labor contract.
How to avoid labor disputes
Zhang Le, an arbitrator of the Chongqing Labor and Personnel Dispute Arbitration Institute, suggested that employers should properly exercise the rights related to the termination and termination of labor contracts in accordance with the statutory conditions stipulated in the Labor Contract Law.
Lawyer Li Jian, a partner of Beijing DeHeng Chongqing Law Firm, believes that companies can motivate employees to work enthusiasm by means of job transfers, performance and salary linkage.
At the same time, companies also need to pay attention to the rationality of job transfers, not only considering the necessity of the employer’s business operations and the legitimacy of the purpose, but also respecting the workers’ right to know.
"In order to avoid unnecessary labor disputes, companies can establish internal appeal mechanisms and labor dispute early warnings for related disputes. For example, when it comes to performing changes to the relevant clauses of the labor contract, they should actively communicate with employees and discuss the content of the labor contract changes and labor disputes. Li Jian said that for employees, it is necessary to abandon the mentality of “fishing at work” and fulfill the legal obligation of “diligence and due diligence” based on the principle of honesty and trustworthiness. In this way, harmony can be built through the efforts of both parties. Labor relations, to achieve a win-win situation for the company and employees.
Li Guo