The female employee refused to lead the sexual harassment, and the department director proposed to expel her and was dismissed to court
"He's so direct, if it's me, get close to you first, touch it, and then chat."
After receiving a number of ambiguous WeChat messages from the leaders, Xiao Ling, who had just joined the company, asked for help from the supervisor Wang Xian. Wang Xian first replied with a smiling expression. After that, not only did he fail to take active measures, he also proposed to the personnel department to expel her.
After the company became aware of the facts, Wang Xian was dismissed on the grounds of serious violations of discipline.
Wang Xian refused to accept and demanded that the company pay more than 360,000 yuan in compensation for the illegal termination of the labor contract.
The Paper News reporter learned from the Shanghai No. 1 Intermediate People’s Court (hereinafter referred to as “Shanghai No. 1 Intermediate Court”) that on April 22, the court publicly sentenced this labor contract dispute case, and the second instance found that the company’s actions to terminate the labor contract were based on sufficient grounds. , Does not constitute an illegal termination, and does not need to bear compensation for the illegal termination of the labor contract, and accordingly the original judgment is upheld and the appeal is rejected.
The woman was sexually harassed just after entering the job
On September 28, 2017, Xiao Ling officially joined the Dahl Company. Wang is now her department head, and Ding Sheng is Wang Xian’s superior.
On the first day of employment, Xiao Ling encountered sexual harassment in the workplace, and Ding Sheng sent her a lot of ambiguous WeChat messages.
That night, Xiao Ling could not sleep until she finally decided to speak bravely.
The next day, Xiao Ling sent a screenshot of the ambiguous WeChat account to Wang Xian, the supervisor, asking how to deal with it.
Wang Xian only replied with a smiling face.
Xiao Ling didn't understand, so she continued to ask, but Wang Xian always avoided it and did not reply directly.
After that, Xiao Ling and Ding Sheng tried their best to keep their distance, and even refused to have lunch with Ding Sheng and Wang Xian.
On August 30, 2018, Wang Xian interviewed Xiao Ling and asked why Xiao Ling had an abnormal degree of Ding’s ecology, and Xiao Ling recorded it.
Xiao Ling mentioned the WeChat screenshots she showed to Wang Xian when she first started. Wang Xian said that she "just didn't want to mix this matter." "I didn't want it at the time. I will answer your questions later."
Xiao Ling also told Wang Xian: "Ding Sheng called me to the office and asked me if I could develop a relationship between men and women. I clearly rejected him, and he continued to harass me. I think this is no longer possible. Any misunderstanding is sexual harassment."
Wang Xian thinks, "The more you hold, the more he thinks I want to treat you." In addition, he said, "If he is so direct, if he is me, he should approach you first, touch it, and then chat."
In response to Xiao Ling’s request, Wang Xian not only failed to take active measures, but in mid-November 2018, on the grounds that Xiao Ling’s work performance was not up to standard and was not gregarious, he consulted with the HR manager and hoped to terminate Xiao Ling’s labor contract. The HR manager believed that Xiao Ling's behavior did not meet the conditions for terminating the labor contract and refused Wang Xian.
The supervisor was fired for sitting idly by and making false statements
At the same time, the personnel department asked Xiao Ling about the work situation.
After Xiao Ling understood the incident, she was furious, thinking that Wang Xian not only did not help herself but also retaliated, so she informed the personnel department of the causes and consequences in detail. Later, Dahl launched an internal formal investigation of Ding Sheng.
On January 31, 2019, the investigation ended, and it was concluded that Ding Sheng violated the company's regulations and should be terminated immediately.
Ding Sheng resigned on the same day after being notified of the investigation conclusion.
On the same day, Dahl issued a "Unilateral Dismissal Letter", stating that Wang Xian had not fulfilled his duties as a manager. After his subordinates reported that he had been harassed by his superiors, he did not take any measures to help him stop being harassed. Instead, he attacked his subordinates. Retaliation and making false statements on the above facts during the investigation has seriously violated the "Employee Handbook" and the "Code of Business Conduct", so the labor contract will be terminated immediately.
Wang Xian was dissatisfied and applied for labor arbitration, demanding that Dahl Company pay more than 360,000 yuan in compensation for illegal termination of the labor contract.
The arbitration was not supported.
Wang Xian went to the court again.
After the trial, the court of first instance held that, according to the law, if the employee seriously violates the rules and regulations of the employer, the employer may terminate the labor contract.
Therefore, it was not wrong for the company to terminate the labor contract with Wang Xian in accordance with the "Employee Handbook" and the "Code of Business Conduct". The court of first instance accepted it and rejected Wang Xian's lawsuit requesting the company to pay compensation for the illegal termination of the labor contract.
Wang Xian refused to accept and appealed to Shanghai No. 1 Intermediate Court.
Court: the company’s termination of the supervisor’s labor contract does not constitute an illegal act
Wang Xian believes that the "Employee Handbook" and the "Code of Business Conduct" have not been formulated by democratic procedures, and there are no serious violations of discipline that are sufficient to terminate the labor contract. Dahl Company constitutes an illegal termination.
After the trial, the Shanghai No. 1 Intermediate People's Court held that the focus of the dispute in this case was whether Dahl's "unilateral termination letter" issued to terminate the labor contract with Wang Xian constituted an illegal termination.
In this regard, the Shanghai No. 1 Intermediate People's Court held that: one piece of evidence in the case shows that the company’s "Employee Handbook" and "Code of Business Conduct" for which Wang Xian disagrees were discussed and approved by the company's trade union.
The labor contract signed between Wang Xian and the company clearly stipulates that the "Employee Handbook" and the "Code of Business Conduct" are part of the labor contract. Wang has now read, understood and accepted the above system.
"Employee Handbook" and "Code of Business Conduct" are binding on Wang Xian.
Secondly, Wang Xian claimed that Xiao Ling did not provide tangible evidence of harassment, and that she could not judge the authenticity, right or wrong of the harassment. However, according to Wang Xian’s comments in the telephone recording on August 30, 2018, Wang Xian himself also I don't think that the relevant WeChat content is a normal communication between colleagues, and Wang Xiaoling has repeatedly emphasized that when Ding Sheng has been harassing her, she has not actively responded to help solve it.
Wang Xian's behavior is obviously contrary to his duties as a supervisor, and the content of his related answers is also contrary to public order and good customs.
According to Wang Xian’s self-report, he should be aware of the reasons for the poor relationship between Xiao Ling and Ding Sheng. However, Wang Xian not only did not take positive measures, but instead believed that Xiao Ling was out of gregariousness. He also consulted with HR and hoped to terminate Xiao Ling’s labor contract. The company's claim that Wang Xian retaliated against Xiao Ling is also a reasonable inference.
Four items, the survey transcript provided by the company shows that Wang has revised many questions in the survey transcript during the investigation process. Wang Xian asked, "Have any female employees reported to you that Ding Sheng said something inappropriate to her? The answer of "no" is also not true.
Wang Xian did have false statements.
In summary, the Shanghai No. 1 Intermediate People's Court believes that Dahl's claim that Wang Xian has committed serious violations of discipline has sufficient grounds and that Dahl's termination of Wang Xian's labor contract does not constitute illegal termination.
The Shanghai No. 1 Intermediate Court rejected the appeal and upheld the original verdict.
Judge: Legal prevention and regulation of sexual harassment in the workplace are getting better
Sun Shaojun, the presiding judge and presiding judge of this case, pointed out that the prevention of sexual harassment in the workplace has long received the attention and attention of legislation.
When the Law on the Protection of Rights and Interests of Women was revised in 2005, Article 40 was specifically added, “Prohibition of sexual harassment of women”. The “Special Provisions on Labor Protection for Female Workers” enacted in 2012 stated that “In workplaces, employers should prevent and stop Sexual harassment of female employees".
Now the "Civil Code" further clarifies that enterprises should take reasonable measures such as prevention, acceptance of complaints, investigation and disposal, which makes the legal prevention and regulation of sexual harassment in the workplace more perfect.
Judge Sun Shaojun reminded that as an employer, it should formulate effective measures to prevent sexual harassment in accordance with the provisions of Article 1010 of the Civil Code and the actual situation of the unit, and strive to adopt a reasonable system design to form a common company for all employees. The overall synergy of preventing sexual harassment.
As an employee, when encountering sexual harassment, you must dare to say no, use a decisive and resolute attitude to curb the degree of development and the probability of recurrence of harassment behavior, and pay attention to retaining evidence to protect your own legal rights and interests.
As a supervisor, when subordinates encounter sexual harassment, they should also actively perform the duties of management personnel stipulated by the employer system, without concealing or shielding, and providing support and assistance to subordinates in resisting sexual harassment in a proper and appropriate manner.
(The names of persons and companies involved in the text are all aliases)
(This article is from The Paper. For more original information, please download the "The Paper" APP)
The Paper, senior reporter Li Jing, correspondent Li Danyang Qiu Shiyun