Original title: employee absent from work for 3 days, dismissed, 98000 compensation in the first instance: the company did not inform the trade union, illegal
If employees of sihai.com are absent from work continuously and without reason, if they violate the rules and regulations of the company and the system is legal, the enterprise has reason to dismiss them. However, a few days ago, an enterprise in Ningbo, Zhejiang Province, dismissed its employees for being absent from work for three days without any reason, and eventually had to compensate its employees by nearly 100000 yuan.
The reason is that the enterprise has terminated the labor contract with its employees without informing the trade union. Reporters found that this is not the only case. Professionals suggest that the employer should establish a trade union in accordance with the law and perform the procedure of notifying the trade union before terminating the labor contract with the employee. If the unit does not establish a trade union, it needs to consult the superior trade union.
He was convicted of breaking the law without informing the trade union in advance
On October 25, 2013, Zhang joined a mechanical manufacturing company in Ningbo as a product design engineer. From May 2 to 4, 2018, he was absent from work for three consecutive days. Zhang's company considered that he had seriously violated the company's rules and regulations, and on May 7, 2018, he issued a notice on termination of labor contract to Zhang.
Zhang said it was difficult to accept the fact of being dismissed. Therefore, he applied for labor arbitration and asked the company to pay more than 98000 yuan for illegal termination of labor contract. In September 2018, the local Arbitration Commission rejected his request for arbitration.
Zhang refused to accept that it was illegal for the company to terminate the labor contract without notifying the labor union in advance, so he sued the court.
According to the provisions of the labor contract law, if an employer unilaterally cancels a labor contract, it shall inform the trade union of the reasons in advance. The court of first instance held that if an employer that has established a trade union fails to notify the trade union in advance in accordance with the provisions, and the laborer claims compensation from the employer for the employer's illegal termination of the labor contract, the court shall support it.
As for Zhang's company's argument that it did not establish a trade union, the court of first instance held that even if there was no trade union, the company should consult the local federation of trade unions when terminating the labor contract.
Neither informed nor consulted with the local federation of trade unions, and the relevant procedures were not corrected before the lawsuit was filed. Therefore, the court of first instance ruled that the company should pay more than 98000 yuan of economic compensation to Zhang.
For the verdict, the company said it was not satisfied and appealed. The court of second instance also held that although the company has not set up a trade union, it can fulfill the obligation of informing by informing and listening to the opinions of employee representatives or asking for opinions from local trade union organizations (trade union organizations). Therefore, the court of second instance rejected the appeal and upheld the original judgment.
'informing the union is a pre process'
In recent years, there are many similar cases. Many enterprises have not set up trade unions, which makes what seems to be a "reasonable" thing will eventually have to pay compensation.
In 2015, there was a similar case in Shenzhen. Zhang joined a network technology company in Shenzhen in July 2012, and was engaged in operation. At the time of entry, both parties signed a three-year labor contract, stipulating that Zhang's monthly salary was 3500 yuan. In March 2015, Zhang was absent from work for 3 consecutive days without asking for leave. During this period, the person in charge of the Department contacted Zhang for many times, but he himself was not contacted.
In April 2015, the company sent the notice of termination of labor contract to Zhang's residence, which clearly stated that "the employee has been absent from work for 3 consecutive days during his / her post, which has seriously violated the company's rules and regulations". According to the provisions of the labor contract law and the employee handbook, the company terminated the labor relationship with Zhang according to law.
The follow-up development of this case is the same as that of Ningbo case. Finally, Zhang was awarded 21000 yuan.
In these cases, the important reason why the employees are dismissed is that the employer fails to perform the legal procedures before terminating the labor relationship with the employees, and the internal rules and regulations of the enterprise fail to effectively link up with the law. In this regard, Lawyer Wang Luying, senior partner of Zhejiang suhao law firm, pointed out that when the employer formulates, modifies or decides rules and regulations involving the vital interests of workers such as labor discipline, it shall be discussed by the staff congress or all employees, put forward plans and opinions, and negotiate with the trade Union or employee representatives on an equal basis. "Rules and regulations can be used as the basis for handling cases when democratic procedures are followed and the contents are not illegal. '
At the same time, if the employer has stipulated in the rules and regulations that absenteeism for three days or more constitutes a serious violation of discipline, Wang Luying believes that at this time, the employer can ask the employee to terminate the labor contract, but the reason should be informed to the labor union before the termination.
According to the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of labor dispute cases (4), an employer organized by a trade union has been established to terminate the labor contract with the employee, but the labor union has not been informed in advance according to the provisions. If the laborer requests the employer to pay compensation on the ground of the employer's illegal termination of the labor contract, the court should support it, but the employer has already It is excepted that the relevant procedures are supplemented and corrected.
Enterprises should set up trade union organizations according to law
In view of the fact that the power between the laborer and the employer is unbalanced, the current law stipulates that the employer should inform the trade union and study the opinions of the trade union when terminating the labor contract. So, what should be done if the employer is an enterprise or a small and micro enterprise that does not have a trade union? Wang Luying said, "then ask for the opinions of the higher level trade union and inform the higher level trade union of the facts. This is an important procedure to terminate the labor contract, and employers must be cautious. '
After the Supreme People's court established the supplementary notice system through judicial interpretation, there are still cases of illegal termination due to failure to notify trade unions. Shen Jianfeng, Professor of the Central University of Finance and economics and director of the Research Center for labor law and social security law, believes that most of the cases are the result of weak legal awareness and lack of knowledge of labor law. From the perspective of improving the system, he thinks that it is necessary to strengthen the consequences of the trade union expressing objection to the termination of the labor contract. 'in some countries, after the termination of notification to the workers' interest representative agency, if the agency objects, the violation is presumed to be lifted. '
Wang Luying suggested that enterprises should establish trade union organizations according to law. She believes that the establishment of trade unions can make the company's rules and regulations have laws to follow, prevent disputes first and negotiate first, so that enterprises and employees can share development.
When there is a labor dispute, Wang said both sides can contact the local labor union for consultation. Taking official account of Ningbo, the Ningbo public Union's WeChat public number "Yonggong Hui", she opened a consultation window with 'online lawyer' to facilitate both parties to seek legal aid from the trade union whenever and wherever possible.