The last to be demoted? Expert: Enterprises can't be willful in exercising their operational autonomy
Chen Xi
Some companies once implemented the last-place elimination system, and then gave up after a lawsuit.
During the epidemic, the company's efficiency declined, and the elimination of the last position turned into a demotion and salary reduction for the last position.
Some employees have doubts: Is it illegal to eliminate the last rank, and the last rank will be demoted and reduced in salary?
Lawyers said that enterprises should not be capricious in exercising their operational autonomy.
The "last position" cannot be used alone as a reason for the company to eliminate employees, and of course it cannot be an excuse for demotion and salary reduction at will.
The sales staff failed to "check-in 8 times a day on the hour", and were considered by the company to be ineffective in performing their duties and were repeatedly reduced in salary; the supermarket chain conducted the evaluation without prior notice, and the manager of a remote store was demoted due to the lowest sales volume; The person in charge of the express outlet was downgraded to a warehouse manager, questioning the vagueness of the company's assessment standards...
After the popular last-rank elimination was found to be illegal, some companies turned to the "last-rank" to randomly demote their employees and reduce their salary.
Can the "last position" be a valid reason for demotion and salary reduction?
Does low ranking necessarily equal "incapable of doing the job"?
How should enterprises exercise their operational autonomy?
From the last elimination to the last demotion and salary reduction
"The word 'last position' always hangs in my heart." Chen Mai served in a headhunting company in Liaoning. When she first joined the company five years ago, the company implemented the last position elimination system, and then gave up because of a lawsuit.
During the epidemic, the company's efficiency declined, turning the former elimination of the last employee into a reduction in the level and salary of the last employee.
"Why does the company always talk about the 'last position'?" Chen Mai couldn't help but wonder, "Is it true that the last position is out of law and the last position is demoted?"
In April 2021, the Guangzhou Intermediate People's Court of Guangdong Province heard a labor dispute case.
Zhou, as the person in charge of a business branch of an express company, ranks in the bottom 25% of the district's quarterly performance.
The company believed that Zhou was incompetent for the job, and adjusted his position to a warehouse clerk according to the internal "Management Measures", and his salary also changed accordingly.
Zhou believes that the company's assessment standards are vague, and its essence is to take the opportunity to dismiss some old employees and avoid signing labor contracts with no fixed term.
Both the first and second instance courts did not approve the demotion and salary reduction.
The court held that the two parties agreed in the labor contract that Zhou's job responsibilities were operation and management, and the company directly adjusted him from the person in charge of the business office to a warehouse keeper without negotiation, which violated the contract.
In addition, a low ranking does not necessarily mean that he is incompetent for the job. The company has not provided evidence to prove that Zhou has other circumstances of incompetence, so there is no basis for the transfer.
"The essence of demotion and salary reduction is to change the labor contract." Li Lingyun, an associate professor at the School of Economics and Law of East China University of Political Science and Law, analyzed that the labor contract law stipulates that the employer must negotiate with the laborer for the terms of change.
Later, in the local arbitration rules, it was developed that the employer may, under certain conditions, unilaterally adjust its position according to the needs of production and operation or the performance of the laborer, but the legality and rationality of the behavior should be fully the burden of proof.
The reporter searched the Judgment Documents Network and found that in terms of unilateral demotion and salary reduction, the controversy focused on the definition of labor performance.
Employers often directly interpret "the bottom of the ranking" as "incompetent for the job" in court trials.
Zhu Huiliang, a senior partner at Beijing Yingke Law Firm, said that in the assessment of the limited grade ratio, if someone is at the top, someone must be at the bottom.
According to the guiding cases issued by the Supreme People's Court over the years, "the last position" cannot be used alone as a reason for an enterprise to eliminate employees, and of course it cannot be an excuse for demotion or salary reduction.
"Whether you are competent for the job" who has the final say
In the labor dispute caused by the demotion of the last position and the salary reduction, the court peeled off the vest of the "last position" and focused on "whether the worker is competent for the job".
So, who decides whether to be competent or not?
How to decide?
"This belongs to the scope of the enterprise's autonomy in operation, but the enterprise cannot arbitrarily determine the standard." Li Lingyun said that according to the original regulations of the Ministry of Labor, incompetence means that the task agreed in the labor contract cannot be completed as required, or the same type of work, the same position The workload of employees, and the employer shall not deliberately increase the quota so that the laborer cannot complete it.
The clear and clear internal rules and assessment system formed on this basis can become the evidence of demotion and salary reduction of the enterprise.
To formulate an assessment system, the procedure must first be legal.
A supermarket chain announced at the store manager meeting that the last rank will be demoted and reduced in salary. The manager of a suburban store, Mr. Li, assessed the last rank and sued the company to the court.
The Suzhou Intermediate People's Court of Jiangsu Province held that the supermarket's evaluation indicators for store managers have not been formulated through democratic procedures, have not been confirmed by the evaluation object, and have not been notified in advance of the evaluation period, and it is inappropriate to evaluate the sales before the meeting together.
Company leaders have also pointed out that store performance is mainly affected by location selection, so performance cannot be unilaterally used as the basis for eliminating store managers.
Another labor dispute case showed that Tang, a salesperson of a milk powder company, was downgraded from 18 to 21, and his annual salary was reduced from 84,540 yuan to 48,000 yuan because his performance appraisal results were below grade C for several months. .
The court of first instance held that although Tang’s company established management measures such as promotion and performance through the workers’ congress, the Reward and Punishment System, one of the basis for demotion and salary reduction, was obviously unreasonable.
For example, it stipulates that "speaking uncivilized language, not walking according to the prescribed route, etc. are acts of negligence", the court believes that this is beyond the scope of labor process and labor management.
In addition, sales volume is a key performance indicator for sales positions. The system stipulates that "check-in 8 times a day on the hour" and "posting orders at a fixed time" does not meet the characteristics of Tang's position, and it is unreasonable to require him to strictly follow it.
The second instance of the Intermediate People's Court of Nantong City, Jiangsu Province held that the rules and regulations should not only conform to democratic procedures, but also have legality and rationality in their formulation and improvement. , aggravate workers' responsibilities and exclude workers' legal rights.
Enterprises can motivate employees through reasonable allocation of performance-based wages
In the past, the last position was eliminated, and now the last position is demoted and salary reduction. Why do companies insist on the last position mechanism?
According to the Labor Contract Law, workers who have worked in the unit for 10 years have the compulsory right to sign a labor contract without a fixed term.
Li Lingyun believes that, for enterprises, the lengthening of the contract period means that there is less room for flexible labor mobilization.
Under such constraints, enterprises hope to win a certain degree of autonomy through the last position mechanism, and eliminate employees with mediocre performance in order to reduce labor costs.
"Although there is a reasonable side to mobilizing the enthusiasm of employees in this way, it is not the best policy." Li Lingyun believes that employers cannot impose penalties on escrow.
For ordinary employees, enterprises should not set too high requirements. "Competence for the job" is the only criterion for judging whether they are qualified. Labor should be motivated through the reasonable distribution of performance-based wages, rather than easy demotion and salary reduction.
What should workers do if they do not approve of demotion and salary reduction?
A case released by the Supreme People's Court in 2021 showed that Dai was demoted from the section leader to the monitor by the company because he ranked last in the annual assessment. Dai regretted his appointment five months later and filed a lawsuit.
In this regard, the court held that the demotion and salary reduction had been implemented for several months, and Dai did not raise any objection during this period, which should be regarded as approval of the transfer.
Zhu Huiliang reminded workers that if they do not agree to the transfer, they cannot work in the new position, and they must express their objection to the unit as soon as possible.
If the objection is invalid, or the unit maliciously demotes a job or salary in the name of "last position", it should file a complaint with the labor supervision department or apply for labor arbitration in a timely manner.