12.2021 Life Guide
Employee refuses to transfer? It can be regarded as absenteeism
Far eastern New Century Corporation (China) investment / Zhang Peifeng
According to the labor contract law, if an employee seriously violates the rules and regulations of the employer, the employer can unilaterally terminate the labor contract; If the employee is absent from work to a certain extent, it belongs to the employee's serious violation of the rules and regulations of the employer. Therefore, it is very important to determine whether an employee's behavior belongs to absenteeism when dealing with personnel disputes. If an employee is lazy in implementing the reasonable personnel transfer of the unit for his own interests, it can be regarded as absenteeism.
Case description
Wang Yitian is an employee of a property management company in Shanghai. Since August 1, 2017, he has been assigned to building 10, xingwaitan, Yangshupu Road, Shanghai as the Deputy property manager.
On April 10, 2020, the company informed Wang Yitian in writing that the owner of building 10 on the star Bund requested to cancel the establishment of the property manager. Based on the major changes in the objective situation, no agreement was reached after many negotiations. Therefore, from April 13, 2020, Wang Yitian was transferred to the Shanghai International Shipping Service Center Project (located at Gongping road in the city), the job position and salary remained unchanged, and Wang Yitian was required to report at 9 a.m. on April 13, 2020, otherwise it would be treated as absenteeism.
Wang Yitian refused to accept the company's arrangement and failed to report to his new post after being urged.
Article 9.3 in Chapter I of the employee manual formulated by the company stipulates that the company has the right to negotiate with the employee or unilaterally change the job position and workplace according to the work needs and performance of the employee... When the employee has any objection to the change, he shall put forward it to the company through legal procedures, and promise that before both parties reach an agreement on the change or resolve the dispute through relevant channels, Obey the arrangement of the company. If the employee causes slackness or other violations of the labor contract and the company's rules and regulations, the company will impose corresponding penalties according to the seriousness of the circumstances, including the termination of the labor contract; Article 2.4 of Chapter VIII stipulates that the company has the right to terminate the labor contract immediately if it has been absent from work for 24 hours or more in one attendance cycle, or 32 hours or more in 12 consecutive attendance cycles.
On April 17, the company informed Wang Yitian in writing that Wang Yitian had been absent from work for 3 days, which seriously violated the rules and regulations, so the company terminated the labor contract with Wang Yitian.
On June 1, Wang Yitian applied for arbitration and asked the company to pay 172000 yuan as compensation for the illegal termination of the labor contract. The Arbitration Commission did not support it. Wang Yitian refused and appealed to the court.
First instance:
In this case, due to the cancellation of the post of property manager by the property owner, the company adjusted Wang Yitian's workplace, and the two places are not far away, so it is reasonable for the company to adjust Wang Yitian's workplace accordingly. Since April 13, 2020, Wang Yitian has failed to report to his new post by slacking off, and his behavior has constituted absenteeism. Now, the company terminates the labor relationship with Wang Yitian according to the employee manual, which does not constitute illegal termination. Therefore, Wang Yitian's claim for the company to pay compensation of RMB 172000 for illegal termination of the labor contract is groundless and the court will not support it.
Employee appeal:
Wang Yitian refused to accept the results of the first instance and appealed for the following reasons: the first instance ordered the company not to pay compensation for illegal termination of the labor contract, which was contrary to the facts, groundless in the law and obviously unfair. According to the supplementary agreement signed by both parties in 2017, my working address is determined as building 10, xingwaitan, and my position is deputy property manager. In April 2020, the company informed me to work at Gongping road property without negotiation, and unilaterally terminated the labor contract on the grounds of my non-compliance with the arrangement and absenteeism. It is not stipulated in the law that the short distance between the changed workplace and the original workplace does not constitute a contract change. For the change of the labor contract, both parties shall negotiate.
Second instance:
The court of second instance held that if a worker seriously violates labor discipline and the rules and regulations of the employer, the employer may terminate the labor contract. As for whether the violation of discipline and whether the violation of discipline is serious, it shall be measured by the limits stipulated in the labor discipline and labor laws and regulations that the worker is obliged to follow, or by referring to the specific provisions on serious violations of discipline in the labor rules formulated by the employer.
In this case, if the company terminates the labor contract on the grounds of absenteeism, it shall review whether Wang Yitian has any disciplinary act of absenteeism. In this regard, the court held that the employee handbook stipulates that the company has the right to negotiate with employees or unilaterally change the workplace according to work needs. In this case, due to the cancellation of relevant posts by the owner, the company changed Wang Yitian's workplace according to work needs. There is evidence to follow and there is nothing improper. In addition, the company adjusted Wang Yitian's work place. The new work place is close to the original work place, and the work post and salary standard remain unchanged. Wang Yitian's daily work and life have not been materially affected, so there is no irrationality in this work adjustment.
Finally, the employee handbook stipulates that if an employee has any objection to the change, he / she shall submit it to the company through legal procedures and obey the arrangement of the company before resolving the dispute. Therefore, Wang Yitian can have different opinions and ideas on the adjustment decision of the company, but it should be reflected through normal channels rather than being resisted or opposed in a negative way. His refusal to be on duty after being urged obviously violates the rules and regulations of the company and disrupts the normal management order of the employer. It is not improper for the company to terminate the labor contract with Wang Yitian on the grounds of absenteeism.
In conclusion, the court rejected the appeal and upheld the original judgment. Case No.: (2021) Hu 02 min Zhong No. 4143 (the party is a pseudonym)
Case analysis
This case is worth thinking deeply by the personnel department and the company's employees: for workers, first of all, they should carefully read the employee manual and labor contract to understand the terms of job transfer. A labor contract is an expression of consensus between employers and workers. It usually states whether there is a transfer and how to deal with it in case of transfer. If the employee has no objection to this, it shall be deemed that the employee complies with the above terms and shall comply with the arrangement when facing the transfer of the company.
Secondly, when employees have objections to the company's arrangement, they should put forward their own opinions according to the process, and must not respond by refusing to be on duty. Otherwise, once they are identified as serious violations of the company's rules and regulations, they will face the risk of termination of the contract.
On the other hand, when drafting the employee manual and labor contract, the personnel department should state that the company has the right to arrange the position and workplace of employees according to the actual situation, and employees should obey the terms of transfer. In addition, when transferring employees, the company shall follow the principle of rationality, consider the actual needs of the post and the impact on employees, so as to demonstrate the rationality of the company's decision. (part of this article is reproduced from "Besser legal and financial information")
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Case description
Wang Yitian is an employee of a property management company in Shanghai. Since August 1, 2017, he has been assigned to building 10, xingwaitan, Yangshupu Road, Shanghai as the Deputy property manager.
On April 10, 2020, the company informed Wang Yitian in writing that the owner of building 10 on the star Bund requested to cancel the establishment of the property manager. Based on the major changes in the objective situation, no agreement was reached after many negotiations. Therefore, from April 13, 2020, Wang Yitian was transferred to the Shanghai International Shipping Service Center Project (located at Gongping road in the city), the job position and salary remained unchanged, and Wang Yitian was required to report at 9 a.m. on April 13, 2020, otherwise it would be treated as absenteeism.
Wang Yitian refused to accept the company's arrangement and failed to report to his new post after being urged.
Article 9.3 in Chapter I of the employee manual formulated by the company stipulates that the company has the right to negotiate with the employee or unilaterally change the job position and workplace according to the work needs and performance of the employee... When the employee has any objection to the change, he shall put forward it to the company through legal procedures, and promise that before both parties reach an agreement on the change or resolve the dispute through relevant channels, Obey the arrangement of the company. If the employee causes slackness or other violations of the labor contract and the company's rules and regulations, the company will impose corresponding penalties according to the seriousness of the circumstances, including the termination of the labor contract; Article 2.4 of Chapter VIII stipulates that the company has the right to terminate the labor contract immediately if it has been absent from work for 24 hours or more in one attendance cycle, or 32 hours or more in 12 consecutive attendance cycles.
On April 17, the company informed Wang Yitian in writing that Wang Yitian had been absent from work for 3 days, which seriously violated the rules and regulations, so the company terminated the labor contract with Wang Yitian.
On June 1, Wang Yitian applied for arbitration and asked the company to pay 172000 yuan as compensation for the illegal termination of the labor contract. The Arbitration Commission did not support it. Wang Yitian refused and appealed to the court.
First instance:
In this case, due to the cancellation of the post of property manager by the property owner, the company adjusted Wang Yitian's workplace, and the two places are not far away, so it is reasonable for the company to adjust Wang Yitian's workplace accordingly. Since April 13, 2020, Wang Yitian has failed to report to his new post by slacking off, and his behavior has constituted absenteeism. Now, the company terminates the labor relationship with Wang Yitian according to the employee manual, which does not constitute illegal termination. Therefore, Wang Yitian's claim for the company to pay compensation of RMB 172000 for illegal termination of the labor contract is groundless and the court will not support it.
Employee appeal:
Wang Yitian refused to accept the results of the first instance and appealed for the following reasons: the first instance ordered the company not to pay compensation for illegal termination of the labor contract, which was contrary to the facts, groundless in the law and obviously unfair. According to the supplementary agreement signed by both parties in 2017, my working address is determined as building 10, xingwaitan, and my position is deputy property manager. In April 2020, the company informed me to work at Gongping road property without negotiation, and unilaterally terminated the labor contract on the grounds of my non-compliance with the arrangement and absenteeism. It is not stipulated in the law that the short distance between the changed workplace and the original workplace does not constitute a contract change. For the change of the labor contract, both parties shall negotiate.
Second instance:
The court of second instance held that if a worker seriously violates labor discipline and the rules and regulations of the employer, the employer may terminate the labor contract. As for whether the violation of discipline and whether the violation of discipline is serious, it shall be measured by the limits stipulated in the labor discipline and labor laws and regulations that the worker is obliged to follow, or by referring to the specific provisions on serious violations of discipline in the labor rules formulated by the employer.
In this case, if the company terminates the labor contract on the grounds of absenteeism, it shall review whether Wang Yitian has any disciplinary act of absenteeism. In this regard, the court held that the employee handbook stipulates that the company has the right to negotiate with employees or unilaterally change the workplace according to work needs. In this case, due to the cancellation of relevant posts by the owner, the company changed Wang Yitian's workplace according to work needs. There is evidence to follow and there is nothing improper. In addition, the company adjusted Wang Yitian's work place. The new work place is close to the original work place, and the work post and salary standard remain unchanged. Wang Yitian's daily work and life have not been materially affected, so there is no irrationality in this work adjustment.
Finally, the employee handbook stipulates that if an employee has any objection to the change, he / she shall submit it to the company through legal procedures and obey the arrangement of the company before resolving the dispute. Therefore, Wang Yitian can have different opinions and ideas on the adjustment decision of the company, but it should be reflected through normal channels rather than being resisted or opposed in a negative way. His refusal to be on duty after being urged obviously violates the rules and regulations of the company and disrupts the normal management order of the employer. It is not improper for the company to terminate the labor contract with Wang Yitian on the grounds of absenteeism.
In conclusion, the court rejected the appeal and upheld the original judgment. Case No.: (2021) Hu 02 min Zhong No. 4143 (the party is a pseudonym)
Case analysis
This case is worth thinking deeply by the personnel department and the company's employees: for workers, first of all, they should carefully read the employee manual and labor contract to understand the terms of job transfer. A labor contract is an expression of consensus between employers and workers. It usually states whether there is a transfer and how to deal with it in case of transfer. If the employee has no objection to this, it shall be deemed that the employee complies with the above terms and shall comply with the arrangement when facing the transfer of the company.
Secondly, when employees have objections to the company's arrangement, they should put forward their own opinions according to the process, and must not respond by refusing to be on duty. Otherwise, once they are identified as serious violations of the company's rules and regulations, they will face the risk of termination of the contract.
On the other hand, when drafting the employee manual and labor contract, the personnel department should state that the company has the right to arrange the position and workplace of employees according to the actual situation, and employees should obey the terms of transfer. In addition, when transferring employees, the company shall follow the principle of rationality, consider the actual needs of the post and the impact on employees, so as to demonstrate the rationality of the company's decision. (part of this article is reproduced from "Besser legal and financial information")
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