"This restaurant is a mess!"In Xianyang, Shaanxi, a woman works in a restaurant and is a cashier, but after work, the woman is also required by the restaurant to be a waiter and a greeter, and even dance for customers. The woman couldn't bear it anymore and offered to resign, but it was not approved. Unexpectedly, one day, the woman refused the manager's request to dance to a customer, but was told by the manager that she was fired on the same day on the grounds that "it violates the corporate culture". Netizens shouted: "This restaurant is not very smart!."(Case **: Jimu News).
Ms. Zhang had always wanted to find an easier job, such as a cashier. In September this year, Ms. Zhang happened to see a restaurant recruiting cashiers, so she submitted her resume, and after the interview, she was hired smoothly.
After joining the company, Ms. Zhang found that things were becoming more and more wrong, because in addition to her own job as a cashier, she often had to act as a waitress and greeter.
At the beginning, the restaurant promised to be a cashier, and if it was too busy, it was understandable to replace it occasionally, but it was repeated for a long time, which conflicted with Ms. Zhang's original intention of applying for this position.
What made Ms. Zhang even more angry was that Ms. Zhang also had to cooperate with the restaurant's requirements and dance in front of customers, which was called to attract popularity for the restaurant.
Ms. Zhang is not good at dancing, and she is more introverted, and she does not like to dance in front of people, so she first communicated with the manager of the restaurant, but there was no improvement.
It lasted for less than 2 months, Ms. Zhang couldn't bear it anymore, took the initiative to resign, and submitted a resignation approval form to the company, but after a month, it was not approved, which was incomprehensible.
Ms. Zhang did not succeed in leaving her job, so she had to continue to do it in the restaurant first, but what happened next made Ms. Zhang a little baffled.
On the day of the incident, the restaurant ushered in a family to handle the full moon banquet, and the manager mobilized all employees to cooperate with all arrangements, serve the family well, and publicize the reputation of the restaurant's good service.
After a while, the manager found Ms. Zhang and said that she needed to cooperate with the talent show, that is, dancing, and all employees must participate. Although Ms. Zhang was reluctant, she did not directly refuse.
Ms. Zhang refused to dance in her heart, thinking that she had already submitted her resignation application before, so she stopped doing it and did not cooperate with the dance.
Afterwards, the manager angrily approached Ms. Zhang and said, "You don't meet the cultural requirements of our company and have been fired." ”
Ms. Zhang was stunned, she did her job very well, and she didn't conflict with customers, but she didn't cooperate with the dance, so she didn't conform to the corporate culture and was fired
Ms. Zhang didn't care about this result, but she was a little unhappy when she thought of being fired from the restaurant.
The more Ms. Zhang thought about it, the more angry she became, and made the matter public on the Internet, allowing netizens to comment on it.
After the incident broke out, it aroused heated discussions among netizens. Some netizens said: "If you don't agree with the employee's voluntary resignation, you have to find a reason to dismiss, isn't it proper to compensate, and encourage Ms. Zhang to defend her rights." ”
Some netizens also said: "Since you have chosen to work part-time, you should obey the arrangement of the unit, just cooperate with a dance, it is harmless, it is not easy to find a job, and cherish it." ”
So, from a legal point of view, how should this matter be judged?
1. Ms. Zhang and the restaurant are in labor relations, and Ms. Zhang, as a worker, can unilaterally terminate as long as she wants to leave her job with 30 days' notice without the approval of the restaurant.
In this case, Ms. Zhang and the restaurant established an employment relationship from the date Ms. Zhang worked at the restaurant, regardless of whether or not they signed a written employment contract.
Article 37 of the Labor Contract Law stipulates that an employee may terminate an employment contract by notifying the employer in writing 30 days in advance.
During the term of employment, unlike the employer, the employee can unilaterally terminate the labor contract without special reasons, as long as the conditions are different. Labor is both an obligation and a right of the worker, and the worker can leave the job unilaterally without any special reason.
Specifically, in this case, although there were no illegal issues such as failure to pay labor remuneration in full and in a timely manner, Ms. Zhang could unilaterally terminate the labor contract, but only with one month's notice and attention to assisting in the handover.
2. The restaurant dismissed Ms. Zhang on the grounds that Ms. Zhang did not cooperate with dancing for customers and violated the grammar of the enterprise, which was an illegal termination of labor relations.
As an employer, the restaurant can only terminate the labor relationship when it meets the statutory conditions for terminating the labor contract, and shall not dismiss the employee without reason, otherwise the labor relationship will be terminated illegally.
Article 39 of the Labor Contract Law stipulates that if an employee seriously violates the rules and regulations of the employer, the employer may unilaterally terminate the employment relationship.
Specifically, in this case, Ms. Zhang's job is a cashier, and it can be said that it is relatively reasonable to occasionally assist the waiter, but asking Ms. Zhang to dance for customers and attract popularity is obviously not the scope of work, and Ms. Zhang certainly has the right to refuse.
On the one hand, in the restaurant, the dancing of employees and the corporate culture are completely different things, and cannot be equated;On the other hand, a violation of corporate culture is not necessarily a serious violation of the company's management system, but depends on whether the company's system regulations have relevant provisions and whether the formulation procedures are legal.
It can be seen that the restaurant unilaterally dismissed Ms. Zhang's unilateral dismissal on the grounds that Ms. Zhang's failure to cooperate with the dancing was a violation of corporate culture, which was an illegal termination of the labor contract.
3. If the restaurant illegally terminates the labor contract, Ms. Zhang has the right to request continued performance of the labor contract, and can also require the restaurant to pay twice the compensation according to the standard of economic compensation.
Article 48 of the Labor Contract Law stipulates that if an employer terminates a labor contract in violation of the provisions of this Law, the employee has the right to request continued performance of the labor contract and also has the right to demand that the employer pay compensation in accordance with Article 87 of this Law.
In this case, the restaurant illegally dismissed Ms. Zhang, who had worked in the restaurant for about 2 months but less than 6 months, and could claim 1 month's salary according to the standard of economic compensation. If Ms. Zhang is unwilling to continue working, she can claim double the compensation, which is 2 months' salary.
What do you think about this case?Welcome to discuss and follow!Legal gas station