"Something that I didn't do at all is a trumped-up charge for me. "He was dismissed for browsing **pornography** during work and seriously violating the discipline of the unit, the man was not satisfied, and refused to admit his disciplinary violations on the grounds that it was a virus in the computer and operated by others, and sued the unit to the Shanghai Xuhui Court, requesting that more than 310,000 yuan be sentenced to compensation for illegally terminating the labor contract.
So, what exactly is the truth? Does the man browse **** during work? How will the court decide this labor contract dispute case?
Fired for watching "small movies" during working hours, the man sued the court for compensation
The 41-year-old Yang was originally engaged in membership management in a financial unit, and has worked for more than five years from April 2017 to the time of the case, with a monthly salary of 1More than 70,000 yuan, the work is relatively leisurely, and it belongs to the "fairy post" in the eyes of "workers", which is enviable.
However, in August 2022, Yang's covetous work came to an end. Because he browsed **pornography** during work, he was terminated from the labor contract by the company on the grounds of serious violations of management regulations. Mr. Yang believed that he did not have the above-mentioned disciplinary violations, and the company's "dismissal" of him was an illegal termination of the labor contract.
In November 2022, Yang applied to the Xuhui District People's Mediation Committee for labor disputes for mediation. Later, due to the failure of mediation, in December of that year, he applied to the Xuhui District Labor and Personnel Dispute Arbitration Commission for arbitration, demanding that the company pay more than 340,000 yuan in compensation for illegal termination of labor contracts, converted wages for unused annual leave, and compensation for non-competition. After the trial, the arbitration commission only supported Yang's unused annual leave in 2022 and converted salary110,000 yuan and non-compete compensation 160,000 yuan.
In April 2023, Yang was dissatisfied with the arbitration award and sued the Xuhui Court, requesting the court to order the company to pay him more than 310,000 yuan in compensation for illegal termination of the labor contract, converted wages for unused annual leave in 2021, and 13 salaries.
Employee: Medium virus, other people's operation, company retaliation, in short, I didn't watch a "little movie"!
During the trial, whether Yang browsed **pornography during work became a very critical focus of the trial. Yang refused to admit that he had engaged in these acts, and submitted some evidence to support his claims.
First of all, a record of other employees' work computer web browsing and ** summarized by Yang according to the content of the notarial certificate annex submitted by the company, the record shows that other employees also have work ** and **entertainment**, the network bandwidth occupied is much higher than Yang's, and there are a large number of non-working time background ** records, Yang believes that the work computer has a Trojan virus.
Secondly, Yang also submitted a copy of the office environment, proving that his workplace was an open environment, and the office computer had no external sound, and watching "small movies" was also a "pantomime", so Yang proposed that he did not have the objective conditions for poor browsing during working hours, and said that it may have been operated by others on his computer.
Finally, there is a letter of intent to purchase a house, which is intended to explain that the company has failed to pay social security in August 2021, resulting in Yang's loss of subscription qualification due to insufficient years of age scores. Mr. Yang said that the two parties had a disagreement over this, and now the employer's termination of the employment relationship between the two parties is a deliberate retaliation.
Employer: "Little Movie" watched it, and he also admitted it
Some employees reported that the network speed of the unit's computer was extremely slow, so we arranged for the network management to access the background data, and only then did we find that Yang used a large number of work computers**, browsing**, and gambling**. In court, the company submitted more direct evidence to prove that Yang had indeed browsed and ** unhealthy network information during his work.
The first is a notarized copy of Yang's work computer browsing, ** records and a WeChat group chat record. The notarial certificate shows that during the working hours from August 2021 to February 2022, Yang's work computer had a large number of pornographic **web browsing and ** records; The chat record shows that the time and device of Yang's work files to be sent to his colleagues are consistent with the time and device of browsing, **pornography***. The company believes that such a complete chain of evidence is sufficient to prove that Yang used his work computer to browse the ** web page during work, and also excludes Yang's defense of "virus in the computer" and "operation by others".
The second is a conversation between the leader of the employer and Yang** and the "Personal Ideological Understanding" signed by Yang. *In Zhongyang, he admitted the fact of browsing, *****, and defended that because he joined a **platform, he needed to click on the **link to increase his points in order to obtain professional audience qualifications, and at the same time, Yang admitted in "Personal Ideological Understanding" that he was not strict with his own requirements and did not strictly follow the rules and regulations, and made a commitment to learn lessons and correct mistakes.
As for Yang's allegation that the company retaliated against him, the employer argued that it was nonsense at all, and stated that after Yang reported to the employer that his house purchase score was insufficient due to the non-payment of social insurance, the employer had actively issued a statement of the situation to the relevant unit and made up the payment.
Court: If the employee violates the regulations, the company's "termination" is legal
After the trial, the Xuhui Court held that if the employee seriously violated the rules and regulations of the employer, the employer could terminate the labor contract.
In this case, the employer terminated the employment relationship between the two parties in August 2022 on the grounds that Yang browsed and ** unhealthy network information during working hours, and seriously violated relevant management regulations and labor contract agreements. According to the ascertained facts and the court's opinions, the employer's "Internet Management Regulations" that Yang has signed for strictly prohibits employees from browsing pornography and other bad information during working hours, and based on the browsing records of a large number of bad information in Yang's work equipment and the conversation ** and conversation records supervised by the employer with him, Yang obviously violated the employer's management regulations and the relevant provisions of the labor contract, violated the basic professional ethics of employees, and also violated public order and good customs and socialist core values. The termination of the employment relationship with Yang on this basis was not improper and was lawful. Yang's claim for the employer to pay compensation for the illegal termination of the labor contract lacked factual and legal basis, and the court did not support it.
Yang's claim that the employer should pay the remaining unused annual leave in 2021 for commuted wages has a corresponding factual and legal basis, and the court supports it. After accounting, the employer should pay Yang more than 7,900 yuan in the converted salary of the remaining 5 days of unused annual leave in 2021.
Regarding the 13th salary in 2022 advocated by Yang, both parties unanimously confirmed that it is an annual performance bonus. According to the ascertained facts and the above analysis, Yang's termination of the labor contract due to serious disciplinary violations was due to his failure to meet the conditions for complete attendance in 2022 due to his own reasons, and the employer's determination of Yang's 2022 annual assessment as "incompetent" was reasonable and justified, so Yang's litigation request for the employer to pay him the 2022 performance bonus lacked factual basis and was not supported by the court.
In the end, the Xuhui Court ruled that the employer should pay Yang more than 7,900 yuan in the converted salary of the unused annual leave in 2021 within seven days from the effective date of the judgment, and rejected Yang's remaining claims.
After the first-instance judgment, Yang appealed, and the second-instance court made a final judgment upholding the original judgment after trial.
Links to legal provisions
Labor Contract Law of the People's Republic of China
Article 39
The employer may terminate the labor contract if the employee falls under any of the following circumstances:
2) Seriously violating the rules and regulations of the employer;
Regulations on Paid Annual Leave for Employees
Article 5
Annual leave can be arranged in a centralized manner within one year, or it can be arranged in stages, and generally not across years. If it is truly necessary for the unit to arrange annual leave for employees across years due to the characteristics of production and work, it may be arranged across one year.
If the employer is unable to arrange for the employee to take annual leave due to work needs, it may not arrange for the employee to take annual leave with the consent of the employee himself. For the number of days of annual leave that should be taken by the employee, the employer shall pay the annual leave salary and remuneration according to 300% of the employee's daily wage income.
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