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How to deal with the year-end bonus dispute caused by job hopping?

near the Spring Festival, people in the workplace are most concerned about the issue of the year-end bonus, which is often the fuse of labor disputes between employers and workers. So do you think the year-end bonus should be paid for job hopping? Let's take a look at it with! Recently, Beijing No. 2 middle school conducted a special investigation on the bonus disputes caused by the job hopping of workers around the Spring Festival. According to the survey, due to the fact that there is no mandatory uniform provision for the year-end bonus in China's laws, the payment of bonus to employers is not transparent and the amount is arbitrary, the disputes in such cases are increasing year by year, and 70% of them are "wage earners" of the post-80s and post-90s. Because of the weak evidence consciousness of most workers, the winning rate is relatively low.

Related cases

The manager sued the year-end bonus and both parties failed to agree

Liu joined a cosmetics company in July 2009 as a packaging manager with a monthly salary of 23000 yuan. Both parties terminated the labor contract on December 31, 2016. Liu sued for the cosmetics company to pay 150000 yuan of year-end bonus from January 1, 2015 to December 31, 2016.

According to the cosmetics company, there is no agreement on the year-end bonus between the two parties. The company will decide whether to issue the year-end bonus and the amount according to the employees' performance. In 2015, Liu's performance was poor, so the company did not give him the 2015 year-end bonus; in 2016, Liu completed part of the work indicators, and the company granted 6000 yuan of year-end bonus as appropriate.

According to the court's hearing, it is not the legal obligation of the employer to issue the year-end bonus to the workers, and there is no clear agreement between Liu and the cosmetics company. Therefore, whether to issue the year-end bonus to Liu or the amount of the corresponding year-end bonus should be within the scope of the cosmetics company's independent decision. Liu's claim on requiring the cosmetics company to pay the year-end bonus of 150000 yuan has not been made Basis, no support.

Win the year-end bonus after leaving before bonus payment

Miao joined a real estate company as property director on June 10, 2015, and officially resigned on March 31, 2016. Before leaving, the company paid Miao the salary in March 2016, but did not pay the 2015 year-end bonus. The company claims that Miao applied for resignation before the year-end bonus was issued, which is not in line with the provisions of the employee handbook on the conditions for the issuance of year-end bonus. In addition, there is no year-end bonus for the level PL5 assessed by Miao at the end of the year.

However, Miao did not recognize that the year-end evaluation level was PL5, and did not know that PL5 did not enjoy the year-end bonus, and said that his department had held the 2015 annual evaluation meeting, at which he was rated as level B. During the trial, the company said that it would submit the basis for Miao's being rated as PL5, the 2015 annual rating results of Miao's Department employees and the evidence of year-end bonus distribution records, but it failed to submit them on schedule.

After the trial, the court held that the provisions of the employee handbook of the real estate company excluded the right of workers to obtain labor remuneration, which should be invalid. It should bear the burden of proof for Miao's rating basis of PL5 and the relevant system of PL5 not enjoying the year-end bonus formulated through legal procedures, but the evidence submitted by it is not enough to prove the above-mentioned matters, and should bear the disadvantage of the impossibility of proof As a result, Miao finally supported the reasonable part of the 2015 year-end bonus litigation request.

Lack of performance appraisal procedure and support of year-end bonus

Hu joined a trust company in June 2011. At the beginning of 2014, the trust company determined that Hu's performance appraisal in 2013 was unqualified and he was not entitled to the year-end bonus of that year. Hu, who was not satisfied with the results of the performance appraisal, filed an arbitration and lawsuit and asked the trust company to pay the 2013 year-end bonus. During the trial of the court, the trust company claimed that the company's implementation of performance appraisal for Hu was based on the 2013 annual performance appraisal implementation plan (with 7 appraisal procedures set). At the request of the court, the company did not submit the relevant evidence of the implementation of 7 assessment procedures for Hu, nor the performance assessment of other employees, the receiving of year-end bonus and the distribution method of year-end bonus in 2013.

After the trial, the court held that the trust company failed to carry out performance appraisal on Hu in strict accordance with its preset seven appraisal procedures, and the legitimacy of the performance appraisal results obtained in the absence of the procedures should be denied, and the trust company should pay the 2013 year-end bonus to Hu.

Misunderstanding reminder

No agreement on bonus payment

For the issue of year-end bonus, many workers hold the view that employers must issue year-end bonus. If other units send them, their own units should also send them; if they send them last year, they should also send them this year; if they send them to others, they should also send them to themselves. However, some employers believe that they have autonomy in the year-end bonus, and has the final say.

'the payment of bonus is not agreed or the agreement is not clear, which is also the cause of disputes. For example, dou Jiangtao, assistant to the president of the fifth division of the people's Court of the second Chinese people's court in Beijing, said that some workers and employers did not agree on the issue of bonus payment in the collective contracts and labor contracts, nor in the rules and regulations of the employers, or the provisions were too simple. Some small and medium-sized enterprises often by the boss willful decision bonus amount, thus causes the lawsuit. Although some employers have made simple agreements on bonus payment, due to the unclear relevant agreements, both parties understand it from the most favorable perspective, resulting in disputes.

At present, there is no compulsory uniform provision for year-end bonus in China's law. In addition to the salary bonus separately agreed by both parties in the labor contract or salary confirmation sheet and other documents, the employer has the right to independently determine whether the year-end bonus and other bonuses are paid, the conditions and standards of payment according to the comprehensive factors such as the operation status of the unit, the work position and performance of the workers. However, if there is a clear agreement in the labor contract or rules and regulations of both parties, it shall be implemented in accordance with the provisions of the labor contract or rules and regulations. This shows that if the year-end bonus is not included in the labor contract, etc., it will be more difficult for workers to claim the bonus.

Judge's suggestion

Suggest workers to keep relevant evidence

According to reports, in addition to a small number of employees who simply sue for the year-end bonus when they leave their jobs, they are generally put forward together with those who have not signed a written labor contract, twice the wage, overtime pay, and the wage of not taking annual leave. However, most of the workers have weak evidence awareness and low ability to collect evidence, so they fail to provide relevant evidence for the employer to issue year-end bonus. Many workers can only claim that there is oral agreement with the employer, without any effective evidence; some workers can only show email or wechat chat screenshots, which can not fully prove their claims, leading to a low proportion of workers winning the lawsuit.

The second hospital suggests that if the employer has oral commitment on salary and treatment and year-end bonus payment, the oral agreement should be written into the written labor contract as far as possible. At the same time, we should also pay attention to the retention of relevant evidence at ordinary times, such as labor contract, reward and punishment system, bank transfer records, bonus payment regulations and performance assessment at ordinary times. In case of any problem, negotiate with the employer as soon as possible to avoid being in a disadvantageous position in the lawsuit.

At the same time, workers should also make a reasonable plan for their own career development to avoid leaving simply because of the year-end bonus. After the decision of job hopping, choose the right time to quit. Try to wait for the results of performance appraisal and the payment of year-end bonus before leaving.

The court also suggested that the employer and the employee should clearly stipulate the relevant salary and treatment in the labor contract, and clearly stipulate the definition, nature, application scope, payment conditions, payment standards, payment time and methods of various bonuses through rules and regulations, so as to improve the predictability of the employees. In the specific implementation process, we should strengthen communication, establish objection collection and feedback mechanism, and strive to let workers understand where the bonus is less and where it is more, so as to make the payment of bonus reasonable.

statistical data

70% of the post-80s and post-90s wage earners

According to Dou Jiangtao, in the past three years, the second Chinese Academy of Sciences has tried 179 cases involving year-end bonus disputes, including 18 in 2015, 60 in 2016 and 101 in 2017, with the number of cases increasing year by year. The number of resignations before and after the Spring Festival is large, totaling 115.

There are various types of disputes between employers and workers over the bonus, which mainly focus on whether the employers pay the year-end bonus, whether the workers meet the performance evaluation standards, whether the workers have left their jobs when the year-end bonus is paid, and whether they have lost the qualification to enjoy the year-end bonus. Among them, 11.7% of the employers denied that there was a year-end bonus, 20.1% of the employers argued that the employees did not pass the assessment, and 53.1% of the employers claimed that the employees had left their jobs and were not entitled to the year-end bonus.

In addition, the dispute also involves the following aspects: whether the new employee is entitled to the year-end bonus or whether the bonus scheme has been set up through democratic procedures and whether the opinions of the labor union or all workers have been solicited if the new employee is less than one year old, takes maternity leave or sick leave exceeds the days specified by the employer.

'the name of the year-end bonus is also various. In addition to the common year-end bonus and thirteen salaries, there are also quarterly bonus, half year bonus, goal completion bonus, team bonus and year-end auxiliary fund. Many employers also set up shopping vouchers, overseas travel, real estate, cars, stocks, options and other awards instead of cash. "Dou Jiangtao said that due to the different names, unclear definitions of nature, different statements of employers and workers, and large disputes, it is difficult to identify the nature of bonus.

In the dispute cases of asking for year-end bonus, the post-80s and post-90s workers became the main force, accounting for 70% of all workers. 'the post-80s are in the period of career rise and growth, with high family pressure and high attention to bonus. However, most of the post-90s have entered the workplace for the first time, with higher education level and stronger ability, and pay more attention to their own feelings, as well as fairness and rationality. '