The reason lies in that the enterprise rescinds the labor contract with the employees without informing the labor union. Reporter interview found that similar cases are not only this one. Professionals suggest that the employer should set up a labor union in accordance with the law, and perform the procedure of notifying the labor union in accordance with the law before terminating the labor contract with the employees. If the employer does not set up a labor union, it needs to ask the superior Labor Union for opinions.
The labor union was dismissed for violating the law without prior notice
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. Zhangs company believes that he has seriously violated the companys rules and regulations, and on May 7, 2018, issued the notice of termination of labor contract to Zhang.
Zhang said it was hard to accept the fact that he was dismissed. Therefore, he applied for labor arbitration and asked the company to pay more than 98000 yuan as compensation for illegal termination of labor contract. In September 2018, the local Arbitration Commission rejected his arbitration request.
Zhang refused to accept that the companys termination of the labor contract without prior notice to the labor union was illegal, so he sued the court.
According to the provisions of the labor contract law, the employer shall inform the labor union of the reasons in advance when unilaterally terminating the labor contract. The court of first instance held that if the employing unit that established the trade union organization failed to notify the trade union in advance in accordance with the provisions, and the worker requested the unit to pay compensation for the illegal termination of the labor contract by the employing unit, the court should support it.
For the case that Zhangs company argued that it did not establish a labor union, the court of first instance held that even if it did not establish a labor 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, nor corrected the relevant procedures before the prosecution. Therefore, the court of first instance ruled that the company should pay more than 98000 yuan of economic compensation to Zhang.
The company refused to accept the verdict and appealed. The court of second instance also held that although the company did not set up a labor union, it could fulfill the obligation of notification by informing and listening to the opinions of employees representatives or soliciting opinions from local labor union organizations (trade union organizations). Therefore, the court of second instance dismissed the appeal and upheld the original judgment.
Informing the trade union is a pre procedure
There are many similar cases in recent years. Many enterprises have failed to set up trade unions, which makes the seemingly reasonable things finally pay compensation.
In 2015, a similar case occurred in Shenzhen. Zhang joined a network technology company in Shenzhen in July 2012, engaged in operation work. At the time of entry, both parties signed a three-year labor contract, stipulating that Zhangs monthly salary is 3500 yuan. In March 2015, Zhang was absent from work for three consecutive days without asking for leave. During this period, the person in charge of the Department contacted Zhang for many times without contacting him.
In April 2015, the company sent the notice of terminating the labor contract to Zhangs residence, which clearly stated that the employee has been absent from work for three consecutive days during his / her stay, which has seriously violated the companys rules and regulations, and according to the provisions of the labor contract law and the employee handbook, the company terminated the labor relationship with Zhang in accordance with the law.
The follow-up development of this case is the same as the aforementioned Ningbo case. In the end, Zhang was compensated with 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 of the enterprise fail to effectively link up with the law. In response, Lawyer Wang Luying, senior partner of Zhejiang suhao law firm, pointed out that when the employer formulates, modifies or decides rules and regulations concerning the vital interests of workers, such as labor discipline, it should be discussed by the workers Congress or all the workers, put forward plans and opinions, and determined through equal consultation with the labor union or workers representatives. Rules and regulations can be used as the basis for handling cases when democratic procedures have been followed and the content is 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, and the absentee employees do have the fact of violating discipline, Wang Luying believes that at this time, the employer can ask the employees to terminate the labor contract, but before dismissing, the reason should be notified to the labor union.
According to the interpretation of the Supreme Peoples Court on Several Issues concerning the application of law in the trial of labor dispute cases (IV), the employer and the employee of the labor union have been established to terminate the labor contract, but the labor union has not been notified in advance according to the provisions, and the employee requests the employer to pay compensation for the employers illegal termination of the labor contract, the court shall support the request, but the employer has already Except for the relevant procedures supplemented and corrected.
Enterprises should establish trade union organizations according to law
In view of the fact that there is imbalance between the labor force and the employer, the current law stipulates that the employer should notify the labor union and study the opinions of the labor union when terminating the labor contract. So, if the employing unit is an enterprise and a small and micro enterprise without a labor union, what should be done? Wang Luying said, then ask for the opinions of the superior trade union and tell the facts to the superior trade union. This is an important procedure to terminate the labor contract. The employer must be careful.
Shen Jianfeng, a professor of the Central University of Finance and economics and director of the research center of labor law and social security law, believes that most of the cases are the result of the employers weak legal awareness and lack of knowledge of labor law. From the perspective of system improvement, he believes that the consequences of the Unions objection to the termination of the labor contract should be strengthened. In some countries, after the termination of the notification of the representative institution of the interests of workers, if the institution objects, it is presumed that the termination is illegal.
Wang Luying suggested that enterprises should establish trade union organizations according to law. She believes that the establishment of trade union can make the companys rules and regulations have laws to abide by, prevent disputes first, negotiate first, and make enterprises and employees share the development.
When there is a labor dispute, Wang said, both sides can contact the local labor union for consultation. In Ningbo, for example, the Ningbo public Unions WeChat public Yonggong Hui set up a consultation window for online lawyers to facilitate both parties to seek legal aid from trade unions whenever and wherever possible.
Source: responsible editor of China industry network: Du Shuo, nb12556