Some companies use strict attendance, job transfer and salary reduction to carry out the so-called "survival of the fittest" for their employees, lawyers reminded——

Disguised means of layoffs, can not escape the eyes of the "law"

  Our reporter Huang Hongtao Our correspondent Liu Weiwei

  reading tips

  When an employee takes sick leave due to cancer treatment, how long is the statutory medical period?

What legal procedures does a company need to go through to remove a trade union chairman?

Employee evaluation is set as the last grade, is it just incompetent for the job?

In practice, some companies have adopted measures such as elimination of the last position, strict attendance, and salary reduction and job adjustment in disguised form.

Lawyers reminded that these "camouflage" methods seem to be legal, but in fact they violate the legitimate rights and interests of employees, and they are worthy of vigilance.

  A few days ago, the Jiangsu Provincial Federation of Trade Unions released ten typical cases of legal aid for trade unions in the province. The reporter found that three of the cases involved companies using measures such as last-place elimination, strict attendance, salary reduction and post adjustment to lay off employees in disguised form.

These "camouflage" methods seem to be legitimate, but in fact they violate the legitimate rights and interests of employees, which deserves vigilance.

  Cancer treatment does not count as absenteeism

  In August 2018, Xu joined a machinery and equipment manufacturing company in Zhenjiang as a warehouse supervisor with a monthly salary of 5,000 yuan.

In August 2019, Xu was diagnosed with ovarian cancer and was admitted to the hospital, underwent surgery, and received chemotherapy.

During the sick leave, Xu went to the hospital for follow-up visits on a regular basis, and submitted to the unit the construction leave form issued by the hospital.

In June 2020, the company unilaterally terminated the labor contract on the grounds that Xu refused to come to work and failed to perform leave procedures in accordance with the company's rules and regulations, and Xu's family was in trouble.

In January 2021, after repeated negotiations with the unit to no avail, Xu applied to the Zhenjiang Federation of Trade Unions for legal aid.

  The focus of the dispute between the two parties is how long the statutory medical treatment period Xu should enjoy.

The employer believes that, in accordance with the "Regulations on the Medical Period for Enterprise Employee Sickness or Non-Work Injury", Xu should enjoy a medical treatment period of up to 6 months.

Xu believes that if he is suffering from cancer and has undergone surgery, chemotherapy and other treatments, the medical treatment period he should enjoy should be no less than 24 months.

  Legal aid lawyer Zhang Hongfei believes that Xu's claim is reasonable, and it is illegal for the company to unilaterally terminate the labor contract.

After that, the Jurong City Labor and Personnel Dispute Arbitration Committee made a ruling on the case: the employer continued to perform the original labor contract and paid Xu 6,114 yuan in deductions and arrears of wages.

The company refused to accept the ruling and filed a lawsuit with the court.

  Attorney Zhang Hongfei believes that: in accordance with the original Ministry of Labor's "Notice on Implementing the "Regulations on the Medical Period for Enterprise Employees' Sickness or Non-Work Injury", for some employees suffering from special diseases (such as cancer, mental illness, paralysis, etc.) If the patient cannot recover within a month, the medical treatment period can be appropriately extended, which means that the minimum medical treatment period that the recipient should enjoy shall not be less than 24 months.

The employer unilaterally terminates the labor contract on the grounds of absenteeism without fully understanding the relevant provisions of the medical period, which is obviously illegal.

  In the end, the court found that the company's termination of the labor contract was illegal. Based on the 24-month medical period, the company should pay the recipients sick leave wages, compensation for illegal termination of the labor contract and other expenses in total of 90,000 yuan.

With the consent of both parties, the court presided over the mediation, and finally the two parties reached an agreement that the company should compensate Xu for a one-time compensation of 85,000 yuan.

  Disguised layoffs are not advisable

  Tan entered a low-voltage equipment company in Nanjing in 2006 to engage in financial work.

In October 2018, Tan was elected as the chairman of the trade union in the general election of the company's trade union.

Because of the inconsistency with the candidates designated by the company's main leaders, Tan believes that he has been treated unfairly at work.

The company asked Tan to resign voluntarily on the grounds of illegal reimbursement. After Tan refused, he transferred his post and reduced his salary in November 2018.

In November of the same year, the company unilaterally terminated the labor contract with employee Cai. When seeking the opinions of the trade union, Tan raised an objection on behalf of the trade union, but his salary was cut again.

  In the case of repeated communication with the company that could not be resolved, in November 2019, Tan applied for labor dispute arbitration to protect his rights.

In December of the same year, the company unilaterally terminated the labor contract with Tan, and sent a letter to the higher-level trade union, clarifying that Tan's position as the chairman of the labor union would be automatically removed from the date of the termination of the labor contract.

  During the trial, legal aid lawyer Zhang Shiliang believed that the company had no factual and legal basis to transfer Tan and reduce his salary on the grounds of illegal reimbursement, and violated Tan's legal rights.

  In addition, Article 17 of the Trade Union Law stipulates that “the chairman and vice-chairman of the trade union shall not be arbitrarily transferred to their jobs when their term of office has not expired. When a transfer is required due to work, the consent of the trade union committee at the corresponding level and the trade union at the next higher level shall be obtained. The chairman of the trade union shall be dismissed. The vice-chairman must convene a general meeting or a member representative meeting for discussion, and shall not be removed without the approval of all members of the general meeting or more than half of all the representatives of the member representative meeting.”

Therefore, it is also illegal for the company to remove Tan as the chairman of the labor union.

  In the end, the court ruled that the company should continue to perform the labor contract with Tan; within ten days from the effective date of the judgment, it should pay Tan the difference in salary of 40,546.67 yuan from November 2018 to November 2019, and at the same time, the average monthly salary should be paid. The standard of 8,960 yuan will be paid to Tan for the loss of wages from December 2019 to the date of resumption of labor relations.

  Last place elimination is illegal

  Wang joined a computer system company in Jiangsu in 2010 as an ordinary engineer, engaged in software development.

In 2015, we entered into an indefinite labor contract with the company, and thereafter we entered into a management position employment contract with the company every year.

In March 2021, in accordance with the rules and regulations, the company issued a notice of termination of the labor contract to Wang on the grounds that he was incompetent for the job.

  According to the provisions of the company's employee assessment manual, the company's employee assessment is divided into three categories: A, B, and C. Type A assessment accounts for 20% of all employees, type B assessment accounts for 70% of all employees, and type C assessment accounts for 10% of all employees. If the company is assessed as grade C twice in a row, the company has the right to terminate the labor contract.

Wang was assessed as Grade C twice in 2019 and 2020, and the company terminated the labor relationship with Wang accordingly.

Wang applied for legal aid to the Nantong Federation of Trade Unions.

  Gu Yudan, head of the legal work department of the Nantong Federation of Trade Unions, believes that the company's assessment system is actually a last-place elimination system. No matter how outstanding the company's employees are, 10% will always be assessed as C grade, and the assessment as C grade. There is no necessary connection between the second and the incompetent for the job, and cannot be equated; even if the assessment is C-level and it is proved to be really incompetent for the job, it cannot be directly "eliminated at the bottom", but should be based on the provisions of Article 40 of the Labor Contract Law, After giving training or adjusting the job position, and re-assessing incompetence for the job, it can be dismissed.

  After mediation, the company realized the potential labor and employment risks existing in its rules and regulations, and promised to revise the company's rules and regulations and provide financial compensation for Wang's case.

Wang believes that the rift between the two parties is deep, and it is of little significance to continue to stay in the company, and agrees to terminate the labor contract and receive economic compensation.

In the end, both parties agreed to terminate the labor contract, and the company paid an additional 10 months' wages as compensation while paying economic compensation to Wang.