**: China Industry Network - Workers**.
Original title: The education and training industry "survives the winter", and some enterprises have labor disputes due to imperfect employment systems (citation).
Layoffs can be understood, but they are unacceptable without going through the legal procedures" (theme).
Worker**-Liu Xu, reporter of China Labor Network.
Reading tips. At present, affected by relevant policies, many discipline education and training enterprises have either cancelled or suspended their education business, and some training institutions have laid off employees, causing labor disputes. Some judges held that although the law gives employers the right to unilaterally terminate labor contracts in advance, education and training institutions still need to communicate and negotiate with employees on the resettlement plan and the termination of the employment relationship.
I can understand the layoffs, but I can't accept them without going through the legal procedures." A few days ago, Qin Yong, a mathematics teacher who has worked in an education and training institution in Shenyang, Liaoning Province for 3 years, received a layoff notice: due to the change of situation affected by the "double reduction" policy, the relevant employees will be notified 30 days in advance and given 3 months of salary compensation. Qin Yong believed that the compensation given by the company was unreasonable and decided to apply for labor arbitration.
According to Tianyancha data, as of December 30, 2021, the number of cancellation or revocation of education and training-related enterprises in 2021 is about 32850,000. How to legally and reasonably handle the labor relationship with employees is a problem that education and training institutions need to face.
The system is not perfect, the procedure is not legal, and it is easy to lead to disputes.
In reality, some education and training institutions have many labor disputes due to the imperfect employment system, the lack of reasonable and legal rules and regulations and effective service.
In July 2020, Li Yang, who worked as a teaching supervisor at a teaching and training institution in Yingkou, Liaoning Province, received a verbal notice from the person in charge of the company that he "no longer had to go to work", on the grounds that the education and training group had been cancelled. Li Yang came to work at the education and training institution in October 2019, and the sudden unemployment notice was unacceptable, and Li Yang sued the institution to the court.
After trial, the Yingkou Intermediate People's Court held that the employer could only terminate the labor contract if it reached an agreement with the employee through consultation, and could not use the cancellation of the group company as a reason for verbally terminating the labor relationship.
Zheng Hong, a grassroots judge in Shenyang who regularly hears such cases, said that in judicial practice, education and training institutions are often held liable for compensation due to the legality of the content of rules and regulations or procedures. For example, the rules and regulations adduced by the education and training institutions have not gone through democratic procedures, there is no evidence to prove that the rules and regulations have been clearly communicated to employees, and even the rules and regulations have not been discussed to defend them, and they have not been served by EMS, email, SMS, WeChat and other means.
31-year-old Fang Yuan has been teaching English in a vocational education and training institution for 8 years, and in 2019, Fang Yuan's average monthly salary was 8,000 yuan, but in 2020, due to the reduction of class hours due to the epidemic, the monthly salary for that year was only 2,600 yuan. In 2021, the agency suddenly signed a labor contract with the employee and paid social security. Fang Yuan believes that the company signed the labor contract at this time in order to lay off employees without paying double wages. "If an employee claims compensation, the compensation is the average salary of the previous year for 12 months, and the basis for calculating the compensation is less. A rough estimate of two-thirds less compensation".
Employees believe that the company does not follow the legal procedures to lay off employees.
Qin Yong said that his education and training institution has a total of 13 employees, including him, a total of six employees have been laid off.
According to Article 41 of the Labor Contract Law, if the labor contract cannot be performed due to a major change in the objective economic situation on which the labor contract is based at the time of conclusion, the economic layoff shall be implemented. Qin Yong believes that enterprises should apply the law of "economic layoffs", perform statutory consultation procedures, give compensation of "n months' wages", and solve other relevant benefits in accordance with the law.
The relevant person in charge of the personnel work of the education and training institution told reporters that due to the impact of the epidemic, the education and training institution has long been unable to make ends meet, considering that there are relevant preferential policies for enterprises that do not lay off employees, and in order to retain mature and experienced employees, they have not laid off employees.
After the introduction of the "double reduction" policy, the unit negotiated with Qin Yong and other 6 people without success, so they terminated the labor contract with them. The person in charge said that according to Article 40 of the Labor Contract Law, if there is a major change in the objective circumstances on which the labor contract was concluded, resulting in the inability to perform the labor contract, and the employer and the employee fail to reach an agreement on changing the content of the labor contract after consultation, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary.
Whether an education and training institution chooses to lay off employees for economic reasons as provided for in Article 41 of the Labor Contract Law or terminate as a 'change of circumstances' under Article 40 of the Labor Contract Law depends on the training institution's own circumstances and takes into account various factors such as its future development positioning, as well as relevant local regulations and judicial precedents. Zheng Hong said.
In this regard, the "Guiding Opinions of the Office of the Fujian Provincial Department of Human Resources and Social Security on Several Issues Concerning the Handling of Labor Dispute Cases Caused by the Novel Coronavirus Pneumonia Epidemic" provides a reference. If an employer affected by the epidemic terminates an employment contract with an employee on the grounds that there has been a major change in the objective circumstances, the arbitration institution shall require the employer to provide evidence of the material change in the objective circumstances, and shall pay attention to whether other employers in the same period, in the same region and of the same nature can perform the labor contract normally. If the labor contract is terminated with the employee solely due to the employer's own reasons, it does not belong to the situation where the objective circumstances have changed significantly.
Illegal termination or anti-increase of enterprise costs.
Companies are not only reluctant to pay less compensation, but also unwilling to carry out the process of economic layoffs. Qin Yong's ** lawyer Li Weidong explained that Qin Yong, who had worked for 3 years, had an average salary of 3,143 yuan in the 12 months before he was laid off, and he should receive compensation of 15,715 yuan, which is actually consistent with the three-month salary compensation given by the education and training institution.
The main consideration of enterprises is that after economic layoffs, the enterprises will enjoy policies such as taxes and subsidies will be affected. In addition, the procedural requirements for economic layoffs are stricter, and the employer needs to prove that there are serious business difficulties by submitting audit reports, financial statements, sudden reduction or cancellation of orders, etc., and must explain the situation to the trade union or all employees 30 days in advance, propose a layoff plan and solicit the opinions of the trade union or all employees, and also report the layoff plan to the local labor administrative department, which is a complicated procedure. Li Weidong said.
Although the law gives companies the right to unilaterally terminate labor contracts in advance, education and training institutions still need to communicate and negotiate with employees on the placement plan and the termination of the employment relationship. Zheng Hong said, "If the employee does not agree to negotiate with the institution to terminate the termination, a termination notice should be sent to the employee and the labor contract should be unilaterally terminated in accordance with the law." ”
Zheng Hong suggested that education and training institutions should formulate a placement plan in advance, including the scope of personnel to whom the placement plan applies, applicable laws, regulations and policies, and the specific program content includes economic compensation, wage settlement, salary discount for unused annual leave, payment and transfer of social security provident fund, program implementation steps and time, etc., as well as special programs for female employees in the third phase, work-related injuries, medical periods, retirement re-employment, and employees who are about to reach retirement age. The organization may inform employees by holding an all-staff meeting, posting announcements, sending e-mails or written materials, posting them on a web page, etc.
Li Weidong believes that enterprises in the education and training industry cannot simply and rudely rely on layoffs to reduce expenditure and relieve pain. Layoffs that do not have a legal basis and violate the law not only cannot reduce labor costs to help enterprises "survive the winter", but may increase enterprise costs and increase the risk of litigation due to labor disputes.
The name of the person concerned has been changed).
Editor in charge: Zhu Jingjing.