Is there a company that "forces people to leave"? Experts suggest further improvement of the "presumed dismissal" system

　　Malicious job transfers and salary cuts, assignment of "impossible tasks", mobilizing colleagues to crowd out and isolate...

　　In order to avoid financial compensation, some companies have played the trick of "forcing people to leave"

　　Experts suggest that the "presumed dismissal" system should be further improved to regulate the employer's autonomy in employment

　　Our reporter Chen Xi

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　　my country's labor laws have strict restrictions on employers' unilateral termination of labor contracts. In order to avoid paying corresponding economic compensation, some companies force employees to resign in disguise by changing jobs and reducing salaries, increasing KPI assessments, and running on isolation.

Experts interviewed said that Article 38 of my country's Labor Contract Law contains the idea of ​​"presumed dismissal" and protects the labor rights and interests of workers in the event of forced resignation. However, in practice, there are narrow scope of application and strict procedures. question.

　　Recently, Liu Yu, who works in a bank, was very depressed.

After the manager in charge learned that she had the idea of ​​taking the public examination, he began to "stumble" everywhere, not only reassigning her, but also mobilizing her colleagues to isolate her.

Liu Yu faced a difficult choice: "I feel very bad at resigning voluntarily, and I can't afford to wait for the unit to be fired."

　　Liu Yu's experience is not an isolated case, and "soft layoffs" are not uncommon in the workplace.

　　my country's labor law has strict restrictions on the unilateral termination of labor contracts by employers. In order to avoid paying corresponding economic compensation, some companies force employees to resign in disguise.

In this regard, interviewed experts said that Article 38 of my country's Labor Contract Law contains the idea of ​​"consumptive dismissal" and protects the labor rights and interests of workers in the event of forced resignation. stringent issues.

In the future, the "presumed dismissal" system should be further improved to encourage employers to correctly exercise their autonomy in employment.

　　"Soft layoffs" are common

　　Although he planned to take the public examination and editorial examination, Liu Yu did not slow down his work because of this, and his performance has always been at the forefront of the department.

　　In June 2022, the manager in charge talked to her and said that "the company does not accept employees who are double-minded", and then asked her to "sell more than 900,000 yuan of insurance products in the next month" on the grounds of "testing loyalty". Otherwise, you have to be a teller.

　　"This is really difficult for the strong. The market has not been good in the past two years, and the senior salesman can only sell 450,000 yuan a month." In desperation, Liu Yu had to accept the job transfer, "the performance income has been reduced by at least 20%."

　　In addition to job transfers, what makes Liu Yu more uncomfortable is the "cold violence". "I am not notified of meetings, and I am not called out for gatherings and team building. Isn't this forcing me to resign?"

　　Ms. Zhang from Liaoning also had a similar experience.

　　In consideration of reducing costs and increasing efficiency, the company decided to abolish her department.

"There are more than a dozen employees in our department, all of whom were forced to leave for work and were only paid basic wages during the period. When we came back, we found that our desks had been moved to the corridor." Ms. Zhang said.

　　The reporter found that the methods used by companies to "force people to leave" are roughly divided into two categories. One is direct pressure, such as job transfers and salary cuts, changing workplaces, and increasing KPI assessments; the other is more subtle, manifested in cold violence, Run isolation, workplace PUA, etc.

　　"After the establishment of the labor relationship, the employer can only terminate the labor contract based on statutory reasons, covering three situations: negligent dismissal, no-fault dismissal, and economic layoffs." Xie Yanping, founding partner of Beijing Zhuopu Law Firm, analyzed that in addition to negligence In addition to non-sexual dismissal without paying economic compensation, the latter two cases require economic compensation according to law.

If there is no legal reason to terminate the labor contract, it is an illegal termination, and the compensation shall be paid twice as much as the economic compensation.

　　Xie Yanping further pointed out that the reason for the frequent occurrence of "soft layoffs" is: "Employers can't find a legal reason to dismiss employees, and don't want to pay any compensation, so they try to force workers to resign voluntarily to achieve 'zero cost' reductions."

　　Laborers often suffer from "dumb losses"

　　Faced with all kinds of difficulties from enterprises, many workers said that they "can't afford it" and "can't win the fight".

　　Ms. Zhang said that under the unfair treatment, young colleagues have found another way out, and she and several old employees are still fighting, hoping to get compensation before leaving.

But the company continued to deal with it coldly, which made them even more overwhelmed.

　　"From the point of view of the two types of 'soft layoffs' methods, there is currently no clear definition in the law for mental pressure methods such as cold violence; the essence of behaviors such as job transfers and salary cuts is to change the labor contract. The employer unilaterally changes the labor contract. , must be based on the objective needs of production and operation, and must not significantly reduce the wages and working conditions of workers, and humiliating and punitive job transfers and salary reductions constitute illegal." Li Lingyun, an associate professor at the School of Economics and Law of East China University of Political Science and Law, analyzed.

　　Mr. Zhou from Henan chose to sue to defend his rights after being dismissed in disguise, but he hit a snag.

　　In November 2019, Mr. Zhou had a dispute with the company.

At the beginning of January 2020, the company transferred him from the post of technician and arranged him to do cleaning work in the workshop. Then he was not allowed to eat in the cafeteria from April 29, and his attendance and access control permissions were deleted from April 30. He was not allowed to enter the workshop starting in the afternoon, and he was neither arranged to work separately nor given any explanation.

Mr. Zhou then submitted his resignation letter and appealed, arguing that the company's behavior was dismissal in disguise and should be regarded as an illegal termination of the labor contract, but the court finally refused to support it on the grounds of insufficient evidence.

　　"Aiming at the situation of 'forced resignation', many countries have formulated the system of 'consumptive dismissal'." Li Lingyun explained that when the employer seriously violates the law or breaches the contract, the basic labor rights and interests of the workers are damaged, and the labor contract cannot achieve the purpose of the conclusion. , the system gives workers the right to unilaterally terminate the labor contract and obtain economic compensation from the employer.

　　Li Lingyun said that Article 38 of my country's Labor Contract Law also embodies the idea of ​​"presumed dismissal", but the scope of application is relatively narrow.

Among them, the most widely covered statutory situation is the first paragraph "the employer fails to provide labor protection and working conditions to the laborers as agreed", but in the current context, it mainly refers to the employer's failure to provide laborers with the requirements for safe production. The conditions of facilities and equipment and labor protection articles.

　　Improving the "presumed dismissal" system

　　"As society progresses, more attention should be paid to the personal dignity of workers, and it is equally important to provide a friendly and equal working environment that is free from discrimination and bullying." Li Lingyun suggested that the first paragraph of Article 38 of the Labor Contract Law Appropriately expand the explanation to make it more inclusive.

For example, malicious job transfers, over-arrangement of work tasks, or failure to arrange work tasks can be regarded as "not providing labor conditions as agreed", and behaviors such as cold violence in the workplace and sexual harassment can also be interpreted as "not providing labor conditions as agreed." Provide labor protection as agreed."

　　In addition, Li Lingyun pointed out that Article 38 of the Labor Contract Law should also be improved in terms of procedural elements.

　　In judicial practice, adjudication rules have been promulgated in many places, requiring employees to clearly inform the employer when they propose to terminate the contract, in accordance with a statutory circumstance in Article 38, otherwise the "constructive dismissal" clause cannot be applied.

However, many workers did not understand this when their rights were violated and resigned, or they did not realize that their situation met the conditions, so they were blocked by procedural obstacles.

　　Li Lingyun suggested that the judiciary should, from a more substantive and fair perspective, focus on requiring employees to provide proof of the employer's violations, instead of using "clear notice to the employer when resigning" as the threshold for applying the "constructive dismissal" clause.

　　"In case of pressure measures such as job transfers and salary cuts, workers have the right to refuse to go to new jobs, refuse to work overtime, or request to continue to perform the original contract, restore benefits and make up for the difference in wages. For methods such as cold violence, although at this stage It is difficult for the labor supervision department to make corrections through administrative means, but workers can actively collect evidence, and if there is a violation of personal reputation rights and other rights, they can also make up for the losses by claiming tort liability." Xie Yanping believes.

　　Xie Yanping said that employers and managers should change the traditional way of thinking about employment, improve the personnel management system, and exercise their autonomy in employment according to law; trade unions should also actively play a supervisory role, facilitate communication in a timely manner, and resolve the knots of both parties in the labor relationship. Resolution is before labor arbitration and litigation.