Yangcheng Evening News reporter Dong Liu Zhanghao
Originally wanted to resign voluntarily, in order to save trouble, apply a resignation report template with loopholes on the Internet, but ended up "losing money" to the former owner instead?
Bad things like this happen from time to time.
The Spring Festival holiday is over, and employees are returning to work one after another. This is the peak period for some employees to leave and resign.
How to make the resignation "safe landing"?
Legal experts said that there are some "pits" that workers should beware of.
Resigners are accused of absenteeism by the company
In March 2021, Peng Chenyu decided to resign because the company had not raised his salary for five years.
He submitted a paper resignation report to the human resources department 30 days in advance. The report was rewritten by him according to an online template, with the words "please give instructions" at the end of the article.
On April 23 of that year, Peng Chenyu packed office supplies and left the company.
To his surprise, on May 20, he received a court summons: the company sued him for absenteeism and asked him to compensate him for economic losses of 29,000 yuan.
After trial, the Jinzhou District Court of Dalian City held that the resignation report submitted by Peng Chenyu contained the words "please give instructions", which belonged to the negotiated termination of the labor relationship and did not comply with the provisions of Article 37 of the Labor Contract Law that "the laborer shall Notify the employer in writing that the labor contract can be terminated”, but the situation stipulated in Article 36 of the Labor Contract Law that “the employer and the employee reach an agreement, the labor contract can be terminated”.
Therefore, in the absence of an agreement between the two parties, Peng Chenyu's behavior is absenteeism and should compensate the employer for economic losses.
Coincidentally, in July 2020, the Jinzhou District Court of Dalian also heard a similar case.
Wang Qingke, an employee of a high-tech enterprise, submitted a "Notice of Termination of Labor Contract" to the enterprise because the enterprise did not pay social security and owed 6,400 yuan in wages for two months.
Originally, according to Articles 38 and 46 of the Labor Contract Law, if the employer fails to pay labor remuneration in full and in time, or fails to pay social security premiums for the laborer according to law, the laborer can terminate the labor contract. And the employer should pay certain economic compensation to the laborer.
However, because the "Notice of Termination of Labor Contract" submitted by Wang Qingke was a template downloaded from the Internet, the specific reasons for the resignation were not stated in it. In the end, under the mediation of the court, Wang Qingke only received the owed wages of 6,400 yuan.
Many people lose money due to careless words
"I don't think this case (referring to the Peng Chenyu case) is representative. Even if the worker is absent from work, it is difficult to prove that the loss was caused and the worker needs to be compensated. In judicial practice, it is extremely rare for an employee to compensate the company due to absenteeism." Guangzhou Cai Fei, head of the Municipal Labor Union Legal Service Lawyers Group and director of the Guangzhou Lawyers Association Labor and Social Security Legal Professional Committee, told the Yangcheng Evening News reporter.
In life, there are not a few cases of workers losing money because of "careless words" in the resignation certificate and resignation report.
Mr. Wu, born in 1977, signed a labor contract with a Chengdu Technology Co., Ltd. in December 2018, stipulating that Mr. Wu (Party B) will work as a product director in the R&D position, with a basic salary of 12,000 yuan/month and a performance salary of 8,000 yuan/month. .
On February 22, 2019, the company issued a "Wage IOU" stating that a Chengdu Technology Co., Ltd. owed a total of 34,427 yuan in cash to employee Wu, and it was scheduled to be repaid in one lump sum before March 10, 2019.
On February 28, 2019, Mr. Wu resigned, and the company issued a "Resignation Certificate" stating: "...applied for resignation due to personal reasons, has gone through the resignation procedures, and worked well during this period without bad performance."
Mr. Wu sued the former "owner" and demanded a total of 34,427 yuan in wages for January and February 2019, as well as 10,000 yuan in economic compensation.
The court of first instance held that the focus of the dispute in this case was whether the company should pay economic compensation.
Mr. Wu claimed that he resigned due to the salary arrears of the company. The company denied it and claimed that Mr. Wu resigned due to personal reasons. In order to prove this claim, Mr. Wu submitted a copy of the IOU and the resignation certificate. The company recognized the authenticity of the above evidence.
However, the IOU cannot directly prove the reason for his resignation, but the resignation certificate states that the resignation is for personal reasons.
The court of first instance accepted the company's opinion, and Mr. Wu resigned for personal reasons.
According to the provisions of the Labor Contract Law, resignation due to personal reasons is not a circumstance where the employee requests that the unit should pay economic compensation for the termination of the labor contract, so Mr. Wu's claim is not supported.
The second instance of the Chengdu Intermediate Court upheld the judgment.
Do not confuse the three resignation situations
Gan Jingyi, a lawyer from Guangdong Jiehai Law Firm, told the Yangcheng Evening News that there are generally three types of resignation requests by workers: voluntary resignation, resignation by agreement with the company, and forced resignation.
For voluntary resignation, Article 37 of the Labor Contract Law stipulates that the employee can terminate the labor contract by notifying the employer in writing 30 days in advance.
The laborer may terminate the labor contract by notifying the employer three days in advance during the probationary period.
Gan Jingyi said: "It should be noted that the 30-day advance notice here is only required to notify the employer in writing, and does not require the consent of the employer."
For resignation by consensus, according to Article 36 of the Labor Contract Law, the employer and the worker can terminate the labor contract by consensus.
In this case, both parties need to negotiate, and both parties can reach an agreement to cancel.
For forced resignation, that is, the enterprise fails to provide labor protection or labor conditions as agreed in the labor contract, or fails to pay labor remuneration in full and in time, the laborer can terminate the labor relationship with the company at any time in accordance with Article 38 of the Labor Contract Law. .
At this time, the employee needs to indicate the reason for forced resignation in the notice of termination of the labor contract.
"Mr. Peng obviously resigned according to the first situation, but 'please give instructions' appeared in his resignation report, confusing the first and the second." Gan Jingyi said that in order to avoid this situation, if employees take the initiative To resign, employees are advised to follow the company's resignation process.
Most companies have a resignation application form. The employee fills in the reason for resignation and the date of resignation. In the general form, the company will need to fill in "agree" to resign. It is recommended that employees make a copy of the resignation form approved by the company as evidence.
Secondly, it is recommended that employees complete the work handover procedures before resigning, fill out a "Resignation Handover Form", hand over office computer information, unfinished work at hand, etc.
The handover form is generally in two copies, signed by both parties, and keep one copy for themselves.
"As a laborer, you should also pay attention to standing on the last shift, and don't walk away." Gan Jingyi said that employees leave before the resignation procedures are completed, and the company has the right to demand compensation from employees.
However, the company also needs a basis for claiming the employee, that is, the company should prove that it caused losses due to the employee's refusal to go through the resignation and handover procedures.
Cai Fei reminded: "The resignation report should clearly state the reason for the resignation and the time of the resignation. It should be stated that it is a notice of resignation, not an application." He suggested that workers send a notice of termination of the labor contract one month in advance.
Beware of the Enterprise "Uniform Template" Trap
In real life, in addition to the situation where employees themselves use the resignation template to "eat dumb losses", it also happens that employers introduce workers into the "pit" in the name of "unified template".
In the aforementioned case of Mr. Wu in Chengdu, Mr. Wu said that he had used the company's "formatted text", which led to his downfall.
During the second trial of Mr. Wu's case, Mr. Wu submitted a new piece of evidence - a screenshot of Dingding's chat.
Mr. Wu aims to prove through this evidence: after the company issued the resignation certificate, Mr. Wu is still following up the project, so the certificate is only a format text issued by the company so as not to affect everyone's future employment, and the actual reason for resignation does not match the content above. .
However, when Mr. Wu's former "owner" a certain technology company in Chengdu, the relevant personnel did not recognize the correlation when they cross-examined, saying that "chat is only an exchange between individuals, and the resignation certificate is signed by each person individually. confirmed".
In the end, the court held that the group of evidence submitted by Mr. Wu was a screenshot of the chat, and in the absence of other evidence to corroborate it, it could not prove that the resignation certificate was ineffective.
In Mr. Wu's view, the company used the "routine" of "formatted text", which prevented him from getting economic compensation.
Some judges said that when there is a situation where the template uniformly used by the company's resignation documents does not match the facts, the judge can only make a judgment based on the evidence.
Because black and white documents are the most convincing, employees are responsible for the documents they have signed.
Regarding the suggestion by netizens that "the labor arbitration department should issue a unified resignation template", Gan Jingyi said "it is not necessary".
Every company is different, every position is different, and a fixed template doesn't necessarily apply, she said.