After the employee submits his resignation.
There are employers.
Not within 30 days.
Handle the resignation procedures for employees.
It's in. After the expiration of the 30-day notice period.
Keep employees working.
After some time.
before notifying the employee of the resignation.
As everyone knows. Such an approach.
The legal risks are very high.
Case review. Ms. Wang joined an accounting firm in Beijing on August 1, 2014, and the two parties signed an indefinite employment contract.
On September 7, 2021, Miss Wang submitted a resignation report to the legal representative Fan through WeChat, and the screenshot of the WeChat chat showed "You sign my resignation report, I will get out after the formalities are completed, you tell me, how I will hand over today" and other content, Fan verbally replied that it would take time to find his successor, and Miss Wang continued to work in the company after that.
According to the bank statements, the company paid Ms. Wang's salary as usual from October 2021 to December 2021.
On December 13, 2021, the Company terminated the employment relationship with Ms. Wang on the grounds that she agreed to her resignation.
Ms. Wang applied for arbitration, demanding that the company pay 960,000 yuan in compensation for the illegal termination of the labor contract, and the arbitration committee ruled that the company should pay 567,600 yuan in compensation for the illegal termination of the labor contract. The company was dissatisfied and sued to the court.
Trial process. First instance].
The court of first instance held that although Ms. Wang expressed her intention to terminate the employment contract to Fan on September 7, 2021, the company did not agree to the expression of intent and did not go through the resignation procedures with Ms. Wang. Both parties acknowledge that during the period from 7 September 2021 to 13 December 2021, Ms. Wang provided her work normally. On December 13, 2021, after a lapse of three months, the Company terminated the employment relationship with Ms. Wang on the grounds of agreeing to her resignation application, which obviously exceeded the reasonable approval process time of the general employer, lacked the goodwill to maintain the employment relationship with reasonableness, and should bear the responsibility for illegally terminating the employment contract.
To sum up, the company was sentenced in the first instance to pay Ms. Wang RMB 567,600 in compensation for illegally terminating the labor contract. Dissatisfied, the company appealed.
In the course of the second instance, the company claimed that the case was the employee's voluntary resignation, and the company notified him of his resignation on December 13, 2021, which did not constitute an illegal termination of the labor relationship.
The reasons given by the company involved in the case are as follows:
1.In this case, the employee voluntarily resigned, the employer agreed, and the labor relationship between the two parties was terminated through consultation, and the employer was not required to pay compensation for illegal termination of the labor contract in accordance with the law.
2.Ms. Wang has never withdrawn her intention to resign, and her exercise of the right to terminate with notice is a right of formation, which will take effect once it is delivered to the company, and cannot be withdrawn without the consent of the company.
The court of second instance held that the focus of the dispute in this case was whether the company had illegally terminated the labor contract and whether it should pay Ms. Wang compensation for the illegal termination of the labor contract. If Ms. Wang proposes to terminate the employment contract, but the company does not respond, but continues to accept the labor provided by Ms. Wang, it should be deemed that the two parties have not reached an agreement on the termination of the employment relationship, and the employment relationship between the two parties will continue thereafter.
Three months later, on December 13, 2021, the Company terminated the employment relationship with Ms. Wang on the grounds that it agreed to her resignation application, which obviously exceeded the reasonable period for the employer to process the employee's application for resignation, and did not fall under the circumstances under which the employer has the right to terminate the employment contract under the Labor Contract Law of the People's Republic of China.
Outcome of the trial. The court of second instance ruled that the court of first instance found that the company had illegally terminated the labor contract, which was not improper and should be upheld, and ordered the company to pay Ms. Wang RMB 567,600 in compensation for the illegal termination of the labor contract.
Judges and lawyers have something to say.
After the expiration of the employee's notice period for resignation.
He is still working normally without leaving his job.
How to determine the employment relationship?
In current judicial practice, it is generally deemed that both parties continue to perform the original labor contract.
Previously, the Zhejiang Provincial High People's Court issued a guiding opinion on this issue in the "Answers to Several Questions Concerning the Trial of Labor Dispute Cases (IV)".
Q: If the employee submits a written request 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, how will the status of the employment relationship between the two parties be determined?
A: 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 regarded as the two parties continue to perform according to the original labor contract.
In this case, if the company went through the resignation procedures with the employee within 30 days after the employee submitted his resignation, there was no need to pay economic compensation at all, but perhaps because the company was not aware of the legal risks, it finally paid 567,600 yuan.
Comprehensive: Workers**, China Judgment Network, Labor Law Library**Henan Legal News.