Recently, a female executive of a technology company in Beijing illegally dismissed employees, which attracted widespread attention. **, the female executive's attitude is extremely arrogant, claiming that "I will be released illegally now" and "can you control my illegality"? When the dismissed person raised the issue of relying on ***, she claimed that "I have someone in the first and second trials", and threatened, "You try it, you can't find a job for two and a half years."
Arrogant attitude, contempt for the law, trampling on the dignity of workers ......The words and deeds of this female executive caused great indignation among netizens. Some people angrily said, "Who gave you the power to make you fly like this", "challenge the law, flout the law"; Some people rationally analyze that "blatant and justifiable violations of the law show that the cost of violating the law is very low, and there is no fear"; Some people pessimistically said, "In the real society, there are still many people who have been dismissed at will without any compensation, and most of them do not have the courage to fight to the end."
Comics: Li Xiaojun
In recent years, there have been incidents of similar corporate executives dismissing employees with an arrogant attitude, reflecting the asymmetry of legal knowledge between enterprises and workers, as well as the dilemma of high cost and long time for workers to protect their rights. In response to several key issues involved in this incident, the reporter of "Rule of Law" interviewed industry experts.
Focus one.
Where does the female executive's confidence come from to "speak wildly".
*After attracting the attention of the whole network, the company where the female executive involved worked responded that the company decided not to pass the probationary period because the worker Sun was incompetent to work. After consensus, the two parties signed an agreement on the termination of labor relations on December 1 last year, and the company paid the wages and severance compensation in full for November on December 8 last year in accordance with the agreement.
The response did not quell the controversy. Many netizens asked: Since it is legally terminated and reached a consensus through consultation, why did the two sides have disputes? The attitude of the female executive is uncomfortable, why does she dare to "speak wildly"?
The female executives in the * are so 'outrageous', which is a reflection of their weak legal awareness and low professional quality, and is also a concentrated embodiment of social problems such as the low cost of illegal activities of employers, the high cost and long time of rights protection of workers, and the 'discrimination' of some enterprises against workers to protect their rights. Jia Baojun, a Beijing-based lawyer who has worked in the field of labor law for nearly 20 years, said.
Xing Zhifan, a senior partner at Beijing DHH (Shanghai) Law Firm, said that in practice, an employer can unilaterally terminate an employment relationship, and once the employment relationship is terminated, the employer only has the obligation to do a good job of handing over the employee in the short term. On the other hand, once the employer unilaterally terminates the employment contract, it may have many negative impacts. For example, leaving a record of unilateral termination on the resignation certificate will affect the employee's continued job search, and "some enterprises will cut off the employee's salary, resulting in the employee not immediately looking for a job but entangled in labor arbitration and litigation, which will have a greater impact on personal life."
At the same time, Xing Zhifan mentioned that even if employees insist on defending their rights, in most cases, compared with employers, employees do not have the prior and continuous support of legal professionals, and often struggle to deal with disputes. Even if the rights protection is successful, the compensation that may be illegally terminated will not be enough to cover the employee's rights protection expenses.
In the opinion of the interviewed experts, the above factors have led some companies to think that they can "fire squid" at will if they have grasped the workers, which may be the confidence of the female executives in the first class to "speak wildly". In fact, many of the words and deeds of female executives have been suspected of violating many laws and regulations such as the Employment Promotion Law and the Labor Contract Law.
Jia Baojun analyzed that judging from the words and deeds of female executives, forcibly dismissing workers without reason and threatening them with difficulty in re-employment violated the provisions of the Employment Promotion Law that employers should protect the legitimate rights and interests of workers and that workers enjoy equal employment and the right to choose their own jobs in accordance with the law; Refusal to pay wages and severance violates the employee's right to receive labor remuneration and severance in accordance with the law; Intimidation on the grounds that it is difficult for an employee to defend his or her rights and force the employee to accept his or her illegal act constitutes coercion and is an invalid act under the Labor Contract Law.
Focus two.
Will rights defenders be the industry's **?
*Another resonant point is that the employee repeatedly tried to question the executive's illegal termination of the labor contract but was refuted, and the female executive claimed that the employee's full authority in the company was canceled and the employee was directly "blasted out of the company" in order to achieve the purpose of terminating the labor contract.
Enterprises have absolute control over operation and management, and can easily deprive workers of their working conditions by revoking access control, closing accounts, vacating authority, transferring business, etc., and workers are naturally weak in this regard. Jia Baojun said.
And this "weakness" may continue to future employment. In the heated discussion among netizens, many people said that what the female executive said made the rights defenders "unable to find a job", which poked at the weakness of the workers, because in reality, there are indeed a few companies that will "discriminate" against the workers who defend their rights.
Jia Baojun agrees. He told reporters that the words and deeds of female executives are not only "naked threats" but also "psychological games", trying to make rights defenders retreat. However, with the improvement of workers' legal awareness, especially when it comes to large compensation amounts, the vast majority of workers will still actively defend their rights, and only a small number of low-risk people who face survival pressure soon after losing their jobs may choose to give in.
Some netizens are worried: If workers continue to protect their rights in accordance with the law, may they face the problems mentioned in ** that affect reemployment or even be affected by the industry?
According to Wang Qian, a professor at the Institute of Judicial Research of Shanghai University of Political Science and Law, in principle, the re-employment of workers does not affect their re-employment, but employers generally require employers to submit a certificate of dissolution or termination of the labor contract issued by the original employer, which may hinder the re-employment of employees. If the original employer is unwilling to cooperate with the issuance, the employee can file a complaint with the labor inspection brigade.
Xing Zhifan reminded that when an employee is facing illegal termination, if he or she requests to resume the performance of the labor contract in accordance with the law, the employee cannot be re-employed until the ruling or judgment takes effect. If you choose to demand compensation for illegal termination of the labor contract, in principle, there is no obstacle to finding a new job, "but the factor of 'background adjustment' should also be taken into account."
The so-called "background investigation" means that the human resources department of the enterprise usually conducts a background check on the prospective or newly hired probationary workers. "If a dispute is found, it will raise the attention of the employee, and the assessment may be stricter, and some units may even refuse to hire him directly. Xing Zhifan said.
Wang Qian told reporters that in practice, there are indeed cases where some employers are reluctant to recruit workers who have a record of rights protection. Employers can learn about the relevant situation through various channels, so it is necessary to deal with the adjudication and other information related to labor disputes accordingly in the future, so as to avoid the employee being directly rejected by the employer in the background check.
It is also necessary to distinguish the situation for the workplace 'blacklist', and if the employee has committed relevant illegal crimes or serious violations of professional ethics before, then the employer is justified in refusing to hire him. Otherwise, it is an infringement of the employee's employment rights and interests, but the reason for the company's refusal to hire the employee is often not disclosed, so it is difficult for the employee to collect relevant evidence in practice, and there is also a lack of effective remedies. Wang Qian said.
However, the experts interviewed also stressed that most companies do not indiscriminately label rights defenders as "problem workers", and in most cases, workers have the opportunity to explain. "Especially for this kind of naked and knowingly committed crimes, we should encourage workers to bravely take up the law to protect their legitimate rights and interests. Jia Baojun said.
Focus three.
Whether there is a time-consuming and laborious problem of rights protection
Among the above-mentioned **, the most angry thing for netizens is the female executive's sentence "Arbitration and litigation for at least two years, don't look for a job, I have food anyway". Some netizens pointed out that some employers have grasped the psychology of workers: rights protection is time-consuming and laborious, and they can't afford to delay or wait, so they can only give up.
So, for some labor dispute cases, as the female executives said, it is necessary to go through the "one adjudication and two trials" procedure, which will take at least two years?
According to Shen Jianfeng, director of the Academic Committee of the Law School of the China Institute of Labor Relations, this is a misunderstanding of the operational efficiency of China's labor dispute settlement system. "After years of institutional innovation and exploration, including the implementation of the finality of the first award and the promotion of the connection between arbitration and adjudication, the proportion of arbitration cases concluded in China has increased significantly. In 2022, this figure is 726%, which is 726% of cases can be settled at the arbitration stage. The arbitration time is 60 days. This means that the majority of arbitration cases will be resolved in a relatively short period of time, not one or two years later."
Shen Jianfeng said bluntly: "In the process of labor relations, both parties should treat each other equally, honestly and legally. The use of intimidation, coercion and other means to manage or communicate not only violates the requirements of the construction of harmonious labor relations, but also may constitute illegal acts. ”
Wang Qian told reporters that workers need to anticipate the corresponding time and economic costs to protect their rights, and in practice, there are indeed cases where workers give up protecting their rights because of time and effort. In terms of time, the worker needs to initiate labor arbitration first, and if he is not satisfied with the arbitration result, he may have to sue the court, and it usually takes a long time to complete the procedure of "one adjudication and two trials".
In terms of fees, there is no fee for labor arbitration, and the court only charges 10 yuan for the acceptance fee of labor dispute cases.
For workers, whether it is worth initiating judicial procedures to protect their rights in labor disputes, how to preserve and collect evidence in advance, and how to deal with similar rough treatment in ** are all very difficult issues. Jia Baojun said that in practice, there is indeed a certain dilemma for workers.
To this end, Xing Zhifan suggested that employees should pay attention to asking the employer about the reasons for terminating the labor contract, pay attention to preserving the relevant evidence of the case in a timely manner, and have the right to initiate labor arbitration with the labor arbitration commission within one year from the date of termination of the labor relationship.
As for the result, Wang Qian said that Article 48 of the Labor Contract Law clearly stipulates the legal liability of the employer for illegally terminating the labor contract, and unless the labor contract can no longer be performed, in principle, the employee can choose between "continuing to perform the labor contract" and "compensation". The end result is mostly the payment of compensation by the employer.
As to the fact that the contract may expire, the employee reaches retirement age or the employer goes bankrupt during the trial of the case, and the labor contract as a continuing contract has relatively high requirements for the basis of trust between the parties, the order for continued performance may lead to 'twisted melons are not sweet' and thus lead to subsequent disputes, so in practice, the majority of employers are required to pay compensation. Wang Qian explained.
Wang Qian suggested that if the employer illegally terminates the labor contract and the worker is unable to negotiate with the unit to resolve the conflict, he can turn to the grassroots labor dispute mediation organization, and the labor dispute mediation committee has basically been set up in each street and township, and some labor and personnel arbitration courts also have a mediation center, if they still cannot reach an agreement with the unit under their intervention, they can file labor arbitration in time. In practice, there are also workers who choose to pass *** at this time, they need to pay attention to not insulting, defaming and other behaviors, otherwise there may be legal risks such as infringing on the reputation rights of others.
Xing Zhifan called on enterprises to consciously abide by national laws and protect the legitimate rights of workers in accordance with the law. In the face of illegal and irregular behaviors of the enterprise, workers can pay attention to retaining evidence, negotiate with the enterprise, report the situation to the trade union, and also have the right to complain and report to the relevant departments, or conduct labor arbitration. Relevant departments should strengthen labor supervision and law enforcement, and investigate and deal with enterprises that violate laws and regulations in accordance with the law.
Author: Rule of Law**Quan**Reporter: Zhao Li, Trainee Reporter: Ding Yi.
*Rule of law**.