The Paper Journalist Wu Yi
"In the past two days, the school finally agreed to implement the arbitration award, and handle my resignation according to the procedures, and the compensation will be discussed separately." Jia Mouqing, a teacher and doctor of the Geography Department of Xinzhou Normal University (referred to as Xinzhou Normal University), said that he started in September last year. It has been almost a year since I proposed to resign, and things have made new progress.
On August 21, The Paper (www.thepaper.cn) learned from Jia Mouqing that Cao Ruidong, Director of the Personnel Department of Xinzhou Normal University, stated to Jia Mouqing’s agent that the college held a dean’s office meeting on August 19 , Decided to implement the arbitration award of "handling labor and personnel relations transfer procedures for him" and proceed in accordance with the procedures. As for the compensation costs, it will be resolved through a new arbitration initiated by the college, and the school will bring the above content to the college standing committee for discussion and approval as soon as possible.
The Paper reporter asked Cao Ruidong for the above information, but the other party declined to be interviewed. The reporter called the Propaganda Department of the Party Committee of the school many times, but no one answered.
Jia Mouqing introduced that the "new arbitration" mentioned above means that Xinzhou Normal University submitted a new arbitration application to the Xinzhou Labor and Personnel Dispute Arbitration Court on July 6. Because Jia’s youth breached his contract and resigned during the service period, the school asked him for compensation of about 420,000 yuan, including the salary and living allowance paid by the school during the PhD period, totaling 130,504 million yuan. A lot of investment".
Jia Mouqing believes that the amount of severance compensation proposed by Xinzhou Normal University is unreasonable. It should refer to the labor arbitration results of Wen, a teacher of the Geography Department who graduated with a doctorate at the same time, in March 2019: total compensation of 180,000.
The two parties were at a stalemate over the amount of compensation. The labor dispute case was deadlocked for nearly a year. In the middle, Jia Mouqing filed the first arbitration application. Xinzhou Normal University did not accept the ruling and sued the court and withdrew the lawsuit. The latter filed a second arbitration. Application.
Behind the case, the focus of public discussion is: the contractual spirit of the university’s training personnel to leave and stay, the legality of the school’s “losing money before leaving” rules and regulations, whether the signing of the agreement is equivalent to tacit compensation provisions, and the reasonable scope of compensation for breach of contract Wait.
Twists and turns in university resignation disputes
This labor dispute originated from: In 2008, Jia Mouqing was hired by Xinzhou Normal University after graduating from a master's degree; from 2015 to 2018, Jia Mouqing went to Northwest Normal University to study for a doctorate and obtained a doctorate degree. During this period, Xinzhou Normal University It provided wages and living allowances. The two parties signed the Agreement in 2018, stipulating that Jia Mouqing must work for Xinzhou Normal University for five years (from July 1, 2018 to June 30, 2023). Make a transfer request. On September 25, 2019, Jia Mouqing resigned to Xinzhou Normal University.
Because he was not approved by the school, Jia Mouqing chose to apply for labor arbitration and asked Xinzhou Normal University to: 1. Pay 100,000 yuan for the economic and spiritual losses caused by his unsuccessful visit; 2. Pay 50,000 yuan for the living allowance during his PhD; 3. Pay 300,000 yuan for settlement expenses; 4. Dissolve the labor and personnel relationship between the two parties and transfer Jia Mouqing's personnel files.
On March 25 this year, the Xinzhou Municipal Labor Dispute Arbitration Commission rejected the first three arbitration requests of Jia Mouqing. The ruling: Xinzhou Normal University and Jia Mouqing shall terminate the labor and personnel relationship within 30 days from the effective date of this ruling. Handle the transfer procedures of labor and personnel relations.
Xinzhou Normal University refused to accept it and filed a lawsuit with the People’s Court of Xinfu District, Xinzhou City on April 8th, demanding not to terminate the labor relationship for Jia Mouqing, and proposed that Jia Mouqing resigned during the under-service period, and must pay at least 510,504 to the college Yuan compensation fee. In Jia Mouqing's view, he only needs to pay the more than 80,000 yuan that the school paid for him during his Ph.
On June 4, Xinzhou Normal University suddenly withdrew the lawsuit and filed a new arbitration request with Xinzhou Labor and Personnel Dispute Arbitration Court on July 6: asking Jia Mouqing for 420,504 compensation.
A few days ago, the relevant person in charge of the Xinfu District People’s Court Office confirmed to The Paper that “Xinzhou Normal University has withdrawn the lawsuit, and any request between the two parties is no longer within the scope of the court’s review”.
"Xinzhou Normal University applies for a new labor arbitration on Jia Mouqing's liquidated damages and other matters, and it does not mean that the March 25 ruling is invalid." Attorney Zhai Zhenyi, a Beijing Yingke (Shenzhen) Law Firm, was interviewed by The Paper Said that Jia Mouqing applied for the arbitration before, but now Xinzhou Normal University withdraws the lawsuit and the arbitration award takes effect.
Since he has not been notified by Xinzhou Normal University to go through the resignation procedures, Jia Mouqing submitted to the court to enforce the arbitration result on July 7, and learned from the court: Xinzhou Normal University stated that it is "under implementation."
In reality, if the school introduces a “compensation before resignation” rules and regulations, do employees have to follow it?
The “Interim Measures for the Administration of the Resignation of Faculty and Staff of Xinzhou Normal University” (hereinafter referred to as the “Interim Measures for the Administration of Resignation”) issued by Xinzhou Normal University in June 2018 stated that: Resignation procedures can only be processed after completing the compensation procedures according to the following regulations.
"The school cannot require others to comply with or oppose the enforcement of the effective ruling based on its'customized rules'." Lawyer Wang Li from the Shanghai Shenhao Law Firm said that if there is a basis for an effective ruling to terminate the labor relationship, it should The parties should execute it unconditionally. Xinzhou Normal University believes that Jia Mouqing needs to compensate the school for liquidated damages, and can initiate legal procedures to protect his legal rights.
Xinzhou Normal University: Support the legal arbitration procedure
At present, the amount of termination compensation and the specific compensation method are the focus of dispute between the two parties.
According to Jia Mouqing, on July 6, Xinzhou Normal University claimed 420,504 compensation from him in a new labor arbitration application. The calculations are as follows: 1. The tuition, accommodation and round-trip fare during the Ph.D. study period is 34,612 yuan, the salary during the full-time study period is 45,892 yuan, and the living allowance is 50,000 yuan, totaling 130,504 yuan; 2. After the Ph. Compensation fee: 3 years * 50,000 yuan = 150,000 yuan; 3. Compensation fee for the evaluation of an associate professor under the service period: 3.5 years * 40,000 yuan = 140,000 yuan.
On August 22, Wang Zewen, vice president of the Xinzhou Labor and Personnel Dispute Arbitration Court, confirmed to The Paper that Xinzhou Normal University had indeed submitted the "Personnel Dispute Arbitration Application" to the Xinzhou Labor and Personnel Dispute Arbitration Court recently.
"I did receive this part of 130,504 yuan. The 34,612 yuan of tuition, accommodation and round-trip fare was reimbursed after graduation, and wages and living allowances were paid to me during the one-year period. Out of the 420,000, this 130,000 was excluded. Many, the rest are imposed fines." Jia Mouqing said.
Where did this "fine" come from? According to the terms of the "Agreement" signed by the two parties in September 2018, it is agreed that if Jia Mouqing wants to be transferred early, according to the unexpired service period, he must pay compensation to Xinzhou Normal University at a standard of 50,000 yuan per year. In addition, the two parties also signed the "Promotional Title Agreement" on July 11, 2018, stipulating that after Jia Mouqing obtains the qualifications for professional and technical positions, he needs to serve at Xinzhou Normal University for five years. If the service period is not expired, he will resign Compensation fees need to be paid at 40,000 yuan per year.
Both documents mentioned in accordance with the "Interim Measures for the Administration of Resignation". Does the document have legal effect? Zhai Zhenyi believes that this depends on two conditions: the establishment of legal procedures and the disclosure to workers. This is stipulated in Article 4 of the Labor Contract Law. Article 19 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases" is further refined: democratic procedures are established; laws, regulations and policies are not violated; and publicity is made to workers.
Cao Ruidong, Director of the Personnel Department of Xinzhou Normal University, told The Paper in April this year that the amount of the claim submitted by the school requires legal compliance. “For doctors who insist on leaving their jobs, we also support legal arbitration procedures and follow the school’s " The “Interim Measures for Resignation Management” and other regulations provide compensation to schools. The “Interim Measures for Resignation Management” is publicly released, and the school teacher’s employment number can be found on the school’s website. The school has no problem of deliberate concealment."
Zhai Zhenyi believes that the school’s "Interim Measures for the Administration of Resignation" was issued in the form of a college document. As long as the approval procedures for the issuance of the documents have been fulfilled, the legal procedures have been passed. Provisions were made: "Public institutions shall establish and improve personnel management systems. Public institutions shall formulate or modify personnel management systems, and shall listen to the opinions of their staff through employee representative meetings or other means.
Does signing the agreement mean acquiescing to compensation provisions?
The new arbitration application submitted by Xinzhou Normal University emphasizes that the school has made a lot of investment in cultivating Jia Mouqing, and the two parties signed the "Agreement" and "Promotional Title Agreement", which represent the true intentions of both parties and do not violate the employment of the institution The agreement is legal and effective. Jia Mouqing proposed to terminate the personnel relationship and should return and pay school related expenses as agreed, totaling 420,504 yuan.
Jia Mouqing also confirmed to The Paper that the two agreements were indeed signed, and explained that the school did not directly take out the "Interim Measures for Resignation Management" at that time. "At that time, I had no idea of leaving my job, and my own legal concept was relatively weak."
Under normal circumstances, does signing an agreement amount to acquiescing to compensation provisions? "The two are not in conflict. It depends on whether the contract is legal and valid." Zhai Zhenyi explained that whether it is a labor contract or a general contract, as long as it violates the mandatory provisions of laws and regulations, the contract will be invalidated, even if the contract is signed Time is voluntary and is a true expression of the intentions of both parties. The invalidation of the contract is retroactive, and the contract is invalid from the beginning.
Therefore, in the final analysis, it is still the issue of whether the provisions involved in the three documents, the "Agreement", the "Promotional Title Agreement" and the "Interim Measures for the Administration of Resignation", are legal and effective.
It can be traced back to the March award of the Xinzhou Labor and Personnel Dispute Arbitration Court, which mentioned: After the trial, it was found that during the trial, both Xinzhou Normal University and Jia Mouqing submitted evidence "Interim Measures for the Administration of Resignation" as the rules of the employer If the system does not violate the mandatory provisions of laws and regulations, both parties shall implement it. The signing of the "Agreement" between the two parties on September 6, 2018 is an expression of their true intentions. As long as the content of the agreement does not violate the mandatory provisions of laws and regulations, both parties shall abide by it.
Lawyer Xie Tongchun, a partner of Shanghai Yingtai Law Firm, previously believed in an interview with The Paper that he considered Xinzhou Normal University’s unit nature, Jia Mouqing’s faculty status and professional and technical job evaluation, and the relevant service period of the “Agreement”. From a comprehensive point of view of the agreement on compensation fees, it tends to think that the provisions of Article 22 of the Labor Contract Law can be referred to. "Of course, the specific decision of the local arbitration commission and court shall prevail."
Wang Li also believes that in view of this case, the "Agreement" of the two parties inferred that Jia Mouqing acquiesced to the provisions of the "Interim Measures for the Administration of Resignation", but whether the "Interim Measures for the Administration of Resignation" is legal is another issue that needs to be judged. It is not a natural conclusion to see whether it violates the mandatory provisions of Article 25 and Article 22 of the Labor Contract Law. This requires a court decision.
Attachment: Contents of Article 22, Article 23, and Article 25 of the "Labor Contract Law"
Article 22 of the "Labor Contract Law": Employers provide employees with special training fees, and if they provide professional technical training, they may enter into an agreement with the employee to stipulate the service period.
If the laborer violates the agreement on the service period, he shall pay liquidated damages to the employer in accordance with the agreement. The amount of liquidated damages shall not exceed the training expenses provided by the employer. The liquidated damages required by the employer to be paid by the employee shall not exceed the training expenses that should be allocated for the unfulfilled portion of the service period.
If the employer and the worker agree on the service period, it does not affect the increase in the labor remuneration of the worker during the service period in accordance with the normal wage adjustment mechanism.
Article 23: The employer and the employee may agree in the labor contract to keep the employer’s business secrets and confidential matters related to intellectual property rights.
For employees who are obligated to keep confidential, the employer may agree with the employee in the labor contract or confidentiality agreement a non-competition clause, and agree that after the termination or termination of the labor contract, the employer will give the employee a monthly payment within the non-competition period. make up. If the employee violates the agreement on the restriction of competition, the employer shall pay liquidated damages to the employer in accordance with the agreement.
Article 25: Except for the circumstances stipulated in Article 22 and Article 23 of this Law, the employer shall not agree with the worker that the worker shall bear the liquidated damages.