Contract During the performance of the labor contract, due to changes in the production and operation conditions of the employer, the need to adjust the position and place of work, or the change in the employee's professional skill level, changes in physical health, and adjustment of labor laws and policies, etc., may lead to the change of the labor contract. In particular, the Labor Contract Law directly guides and promotes the written and long-term employment relationship, which will make the change of labor contract more common.
Penalty. Brief facts of the case.
Huang applied for a job in Company A, and after going to work, the company conducted professional training for Huang and paid a special training fee of 50,000 yuan, for which the two parties signed a three-year service contract and agreed on liquidated damages of 80,000 yuan.
Five months later, the company's business cooperation unit requested to borrow Huang to assist in completing a certain business, and after the company agreed, it immediately notified Huang in writing to work temporarily in the cooperative unit for a period of time. Huang didn't want to go, but considering that he had just turned regular, he was very unhappy in his heart, and he submitted his resignation to the company after working in the cooperative unit for 3 months, and the company did not agree to Huang's resignation, and then notified Huang to return to his original post in the unit. Huang believes that the company no longer needs him and insists on resigning. The company then demanded that Huang bear the liability for breach of contract.
Huang believes that the company sent himself to work in the cooperative unit to change the contract without authorization, and he did not agree and resigned according to the regulations, so he should not bear the liability for breach of contract.
The company believes that the company's dispatch of Huang to the cooperative unit is a temporary work arrangement, not a change in the labor contract, the company has signed a service period contract with Huang, and Huang should bear the liability for breach of contract if he resigns during the service period.
The focus of the controversy. 1.Is the employer changing the contract without authorization?
2. Should Huang bear the liability for breach of contract?
1. Modification of labor contracts.
The labor contract concluded in accordance with the law is binding, and the employer and the employee shall perform the obligations stipulated in the labor contract. If the content of the labor contract cannot be fulfilled for any reason, the labor contract shall be changed or terminated in accordance with the law. In this case, the company's dispatch of Mr. Huang to work in a cooperative unit was an act of changing the work content and work location, which was an act of changing the labor contract. In this case, the employer and the employee may change the content of the labor contract by reaching an agreement through consultation (the change of the labor contract shall be in written form).
How can you be sure that the parties have reached an agreement? This is generally based on a statutory written change agreement. However, in some cases, the employer changes the labor contract without taking written form, but the parties to the labor contract have actually performed it. This case falls into this category. In this regard, one view is that the written form is the legal form of modification of the labor contract, and if the written form is not adopted, it should be deemed that the labor contract has not been changed and is still performed in accordance with the original labor contract: the other view is that if the actual performance of the labor contract changes, and neither party raises any objection, then the actual performance is a tacit acquiescence to the change of the labor contract, and its validity should be confirmed. This case adopts the first view, that is, although the parties have agreed to modify the contract through negotiation but do not have it in writing, it is not impossible to regard the actual performance of the parties without objection as the basis for confirming the establishment of the modification. The company notified Huang in writing to work temporarily in the cooperative unit for a period of time, and although Huang was unhappy, he still worked in the cooperative unit for 3 months. If the company has written notice and Huang has actually performed it, it should be deemed that the two parties have agreed to change the labor contract.
2. Liability for breach of contract.
If the employer provides special training expenses for the employee and provides him with professional and technical training, it may enter into a service period agreement with the employee and stipulate liquidated damages in the service period agreement. If the employee violates the service period agreement, he shall pay liquidated damages to the employer in accordance with the agreement. The amount of liquidated damages shall not exceed the training fees provided by the employer. The liquidated damages required by the employer shall not exceed the training expenses that should be apportioned if the employee has not fulfilled the service period. Once the employee violates the service period agreement, he or she shall pay the contract fee to the employer in accordance with the agreement. In this case, Mr. Huang signed a service contract with the company, and he should bear the agreed liability for breach of contract if he resigned during the service period. If an employee can terminate the labor contract due to illegal acts such as non-payment of wages by the employer, it is not a breach of the service period, and the employer shall not require the employee to pay liquidated damages.
In this case, Mr. Huang argued that the company insisted on resigning because he was assigned to work in a cooperative unit and did not need him, and the reason for Mr. Huang's resignation did not belong to the situation where the employee could exercise the right of termination, and even if the situation of "not needing" was true, it should be the employer's exercise of the right of termination. Therefore, Huang's resignation should be an unconditional termination of the labor contract by the employee. As for Huang's claim that the company changed the labor contract without authorization, only if the modification of the labor contract could not be established due to violation of relevant laws and regulations, and the modification caused a substantial change in the working conditions agreed in the labor contract, resulting in Huang's inability to provide mobility or obtain the agreed labor remuneration as agreed in the original labor contract, Huang could terminate the labor contract in accordance with Article 30 of the Labor Contract Law and did not need to bear the liability for breach of contract. Since it was determined that the two parties had agreed to change the contract, and the change of the contract did not affect the performance conditions and labor remuneration of Huang's labor contract, Huang should pay the employer the corresponding liquidated damages.
Inspiration and reflections.
Disputes arising from changes in employment contracts are difficult issues. Due to the unequal status of the subjects of the labor relationship, coupled with the personal nature of the labor relationship, the labor laws and regulations have imposed corresponding restrictions on the conditions and procedures for changing the labor contract. For example, Article 17 of the Labor Law stipulates that the conclusion and modification of a contract shall follow the principles of equality, voluntariness and consensus, and shall not violate the rulings of laws and administrative regulations. Paragraph 1 of Article 35 of the Labor Contract Law also stipulates that "the employer and the employee may change the content of the labor contract if they reach a consensus through consultation." Modification of the labor contract shall be in written form. ”
Article 4 also stipulates three circumstances under which an employer may be legally modified: (1) if an employee is sick or injured not due to work-related injuries and is unable to perform his or her original job after the expiration of the medical treatment period, the employer may arrange another job and change the original employment contract; (2) If the worker is not qualified for the job, he or she can change the contract and adjust his position; (3) If there is a major change in the objective circumstances on which the labor contract is based at the time of conclusion, which makes it impossible to perform the labor contract, the employer may negotiate with the employee to modify the labor contract.
According to the above provisions, the employer shall generally agree with the employee to agree on the modification of the employment contract through negotiation and shall take written form, and the employer may unilaterally change the employment contract under certain conditions. These laws and regulations are relatively simple, but there are still many problems in practical operation, which are easy to cause many disputes, mainly in the following two aspects:
1) Definition of the employer's exercise of self-management rights and the modification of the labor contract. It is more common for the employer and the employee to agree on a lower-level position and salary in the employment contract, and then unilaterally decide to adjust the employee to a higher-level position and salary.
2) Some labor contracts are more abstract, such as the job does not stipulate specific drivers and accountants, but stipulates general workers, management positions, and technical positions, and the working place is agreed to be East China, South China or even China, and the salary and treatment are agreed to be "not lower than the minimum wage standard", and some labor contracts stipulate that "the employer can adjust the specific position and salary of the worker according to the objective needs of production and operation".
The above-mentioned situations are generally discretionary according to the criteria of whether the modification of the employment contract is reasonable, but they often produce deviations, and cannot make the parties have relatively clear expectations of their own behavior, which causes trouble to the normal operation of the employment relationship, and needs to be further improved or resolved through relevant legal interpretations.