Lies hurt the cost of violating the "principle of good faith"

　　Whether it is the story of "the wolf is coming" in Aesop's fables or the anecdote of "President Washington cut down the cherry tree when he was a child", it emphasizes that "honesty" is the most basic principle of life, and facing work is of course no exception. This paper will illustrate the importance of good faith in the process of signing labor contracts through practical cases.

Case description

Zhou is an employee of Shanghai XX Industrial Co., Ltd. the two parties signed a labor contract with a period from August 9, 2016 to August 8, 2017, and agreed that Zhou's probation period is from August 9, 2016 to October 8, 2016.

On September 30, 2016, the company issued the notice of termination of labor contract during the probation period to Zhou on the grounds that Zhou did not meet the employment conditions during the probation period. The reasons for termination were stated as follows: the probation period did not meet the employment conditions, mainly due to lack of communication skills, financial processing errors, internal management statements were not issued timely and accurately, and the work was not handled according to the company's work flow The accounting vouchers were not reorganized, bound and filed after employment. Zhou signed the notice the next day. However, when the company terminated the labor contract, Zhou was pregnant.

On October 20, 2016, Zhou applied to the labor and personnel dispute arbitration commission of Pudong New Area of Shanghai for arbitration, demanding that the labor relations between the two parties be restored, and pay his salary from October 1, 2016 to the date of restoration of labor relations at the standard of 7500 yuan per month. The Arbitration Commission did not support Zhou's request.

Judgment of first and second instance:

Zhou refused to accept the ruling and appealed to the court of first instance, requiring the company to restore the labor relationship between both parties and pay the salary from October 1, 2016 to the effective date of the judgment according to the salary standard of 6000 yuan per month. At the same time, he also required the company to pay 22500 yuan of maternity allowance from October 1, 2016 to August 16, 2017, 47000 yuan of maternity leave salary from March 24, 2017 to August 28, 2017 The maternity medical subsidy is 3600 yuan, and other reasonable losses from October 1, 2016 to the effective date of the judgment are 125650 Yuan & hellip& hellip; The total amount is more than 200000.

Judgment of first instance

(1) Restore the labor relationship between Zhou and the company.

(2) Within five days from the effective date of the judgment, the company shall pay Zhou's salary from October 1, 2016 to the effective date of the judgment according to the salary standard of 6000 yuan per month.

After hearing the case by the court of first instance, Zhou refused and appealed to the first intermediate people's Court of Shanghai.

Judgment of second instance

(1) Revoke the judgment of first instance.

(2) Zhou's claim to restore the labor relationship between the two parties was rejected, and the company was required to pay the salary lawsuit from October 1, 2016 according to the salary standard of 6000 yuan per month.

(3) The company shall pay Zhou a lump sum of RMB 36000 within 10 days from the effective date of the judgment. (in the second instance, the company said that under the condition that the labor relationship could not be restored, it was willing to pay Zhou a lump sum of 36000 yuan, including compensation)

(4) Judgment basis of second instance:

In the first instance, according to the relevant evidence, it was found that the company's illegal termination of the labor contract was not improper; However, according to Article 48 of the labor contract law of the people's Republic of China, if the labor contract can no longer be performed, the employer shall pay compensation in accordance with Article 87 of this law.

Moreover, workers should be honest and trustworthy. In this case, XXX automation equipment (Shanghai) Co., Ltd. issued a resignation certificate, recording that Zhou worked as a financial accountant in the finance section of the general affairs department of the company from October 24, 2014 to March 20, 2015. However, Zhou filled in the employee basic information registration form when he joined the company in August 2016, but recorded "general ledger accountant of XXX automation equipment Shanghai Co., Ltd. from February 2014 to January 2016", There are obvious differences in entry time, resignation time and specific positions. Although Zhou claimed memory bias in the second instance, it is still difficult to accept.

In combination with the above factors, the particularity of the position in the financial department and the fact that there is only one position in the position, the labor contract can no longer be performed, so it is revised. The labor relationship between the two parties is terminated on the date when Zhou signs the notice on termination of labor contract during probation period. The company said that it was willing to pay Zhou 36000 yuan in a lump sum, which should be fulfilled.

Case protest

1、 Procuratorate protest:

On February 20, 2019, the Shanghai Municipal People's Procuratorate lodged a protest to the Shanghai high court. The reasons are as follows.

China implements special protection for female employees. When Zhou came to work in the company, he was pregnant. The company terminated his labor contract with Zhou on the grounds that "the probation period did not meet the employment conditions". In this regard, the company neither provided relevant evidence that Zhou did not meet the employment conditions, nor provided evidence to prove that Zhou was incompetent. Therefore, the final judgment found that the company illegally terminated the labor contract, but did not support Zhou's application for restoring labor relations, which was groundless in law.

2、 The high court ruled:

The high court held that the law does have special protection for pregnant female employees. Article 42 of the labor contract law of the people's Republic of China stipulates that the employer shall not terminate the labor contract in accordance with the provisions of articles 40 and 41 of this Law: &hellip& hellip; 4 Female workers during pregnancy, childbirth or lactation; However, pregnancy is not an exemption gold medal for female employees. Article 39 of the labor contract law of the people's Republic of China stipulates that if a worker is under one of the following circumstances, the employer may terminate the labor contract: (1) it is proved that she does not meet the employment conditions during the probation period; 2 Seriously violating the rules and regulations of the employer &hellip& hellip;。

Zhou Moumou conceals his employment experience and records the impractical salary information on his personal resume, which is not only in violation of the contract between both parties, but also contrary to the most basic professional ethics of workers, and should bear the legal consequences. At the same time, Zhou made mistakes in his work during the probation period of the labor contract. According to the above situation, the company terminates the labor contract of both parties, which reflects the right of independent operation of the enterprise. The law protects the legitimate rights and interests of workers, but those workers who want to use the law to achieve their personal illegal purposes shall be rejected according to law.

Case analysis

The principle of good faith is the basic legal principle that employers and workers should abide by in the process of concluding labor contracts. According to Article 8 of the labor contract law of the people's Republic of China, the employer has the right to know the basic information directly related to the labor contract, and the employee shall truthfully explain it. Both the employer and the employee have the legal obligation to truthfully inform the other party of matters directly related to the conclusion of the labor contract.

Therefore, in the above case, Zhou Mou violated the "principle of good faith" because he failed to report his work experience honestly at the time of entry, which became one of the main reasons for the final loss of the lawsuit.

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