This is the case of an accounting firm in Beijing, where the protagonist is not a junior employee, but a financial director who is a partner.
Case No.: (2023) Jing 02 Min Zhong No. 3123.
On August 1, 2014, Ma Dongmei (pseudonym) signed an indefinite labor contract with an accounting firm in Beijing to serve as a credit partner, financial manager and financial supervisor, with a salary of 30,000 yuan per month and a year-end bonus in the range of 100,000 to 120,000 yuan.
On September 7, 2021, Ma Dongmei sent a WeChat message to the director of the accounting firm, which read:
You sign my resignation report, I will get out after my withdrawal procedures are completed, you tell me, how I will hand over today, didn't you say that I will not use it tomorrow.The accounting firm believes that this is an expression of Ma Dongmei's voluntary resignation.
However, the accounting firm did not agree to the resignation application, nor did it go through the resignation procedures, and said that it needed to find a successor.
Between September and December 2021, the accounting firm paid Ma Dongmei's salary as usual, and Ma Dongmei continued to work normally.
Three months later, on December 13, 2021, Ma Dongmei received a notice from the firm agreeing to resign, thereby terminating the employment relationship.
Ma Dongmei was dissatisfied and filed an application for labor arbitration, claiming that the firm was illegally dismissed and demanding double economic compensation, with a total amount of 960,000 yuan.
The firm also thought that this was Ma Dongmei's voluntary resignation, and there was no need for compensation at all.
Unexpectedly, from labor arbitration to the first and second instance of the court, I lost all the way, and finally because of the statutory compensation ceiling of three times the average salary, the compensation amount was reduced to more than 560,000 yuan.
The labor arbitration tribunal ordered compensation of 567,600 yuan, which was recognized in both the first and second instance.
The court of first instance held that the firm terminated the employment relationship on the grounds of agreeing to the resignation application three months after Ma Dongmei filed her resignation, which obviously exceeded the time of the general reasonable approval process, lacked the goodwill to maintain the employment relationship with reasonableness, and should bear the responsibility for illegally terminating the employment contract.
The court of second instance accepted the first-instance view, holding that the firm did not respond to Ma Dongmei's resignation application in September 2021, and at the same time accepted Ma Dongmei's employment from September to December, and should be deemed to have continued the employment relationship. Three months later, on December 13, 2021, the firm agreed to terminate the employment relationship with the employee on the grounds that the resignation application was accepted, which obviously exceeded the reasonable period for the employer to handle the employee's application for resignation, and the court of first instance found that it was not improper.
Article 47 of the Labor Contract Law stipulates that:
If the monthly wage of a worker is three times higher than the average monthly wage of the employee in the previous year as announced by the people of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard of economic compensation to be paid to him shall be three times the average monthly wage of the employee.In 2020, the average salary of employees in legal entities in Beijing was 151,360 yuan, or 37,840 yuan per month. Therefore, although Ma Dongmei's average monthly salary is as high as more than 40,000 yuan, it can only be calculated at 37,840 yuan per month due to the upper limit of compensation.
Ma Dongmei has 7 years of serviceIn 5 years, doubled, isn't it 567,600 yuan?
When Ma Dongmei proposed to resign, the firm did not deal with it in time, kept delaying, and at the same time rashly issued a notice of consent to resignation after 3 months, thinking that it was not a big deal, anyway, there was evidence that she proposed to resign.
However, such a perception is very different from real judicial practice and legal provisions, and there is a great risk of compensation.
If the company does not object to the employee's voluntary resignation and the actual return to work, the situation will generally be deemed to have continued to exist in the original employment relationship.
The First Civil Trial Division of the Zhejiang Provincial High People's Court and the Zhejiang Provincial Labor and Personnel Dispute Arbitration Court mentioned in point 5 of the "Answers to Several Questions Concerning the Trial of Labor Dispute Cases (IV)":
If the employee proposes to terminate the labor contract 30 days in advance, but after the expiration of 30 days, the employee continues to work for the employer and the employer does not raise any objection, it can generally be deemed that both parties continue to perform in accordance with the original labor contract.Since the employment contract continues to be performed, it is impossible for the employer to unilaterally terminate the contract casually, otherwise it will face a claim for illegal dismissal.
Delaying the processing of an employee's resignation application may seem like a trivial matter, but it may lead to high compensation!
I'm going to be hot