Viewpoint | Discussion on disputes over workers' automatic turnover
Published:
2022-12-12
1. the past and present of automatic resignation Reply of the former General Office of the Ministry of Labor on the Handling of Unauthorized Leaving Employees by Enterprises (No. 68 [1993] of the Ministry of Labor, no longer valid), Reply on the Definition of Automatic Resignation and Absenteeism (No. 48 [1994] of the Ministry of Labor, has expired), "on the employee's unauthorized resignation according to the automatic resignation processing dispute belongs to the scope of labor dispute processing reply" (labor office force word [1992] No. 45, has expired) on the automatic resignation of different norms. In fact, this series of documents is only a behavior description of "automatic resignation", which is a broad sense of workers leaving their jobs. Therefore, the automatic resignation cannot be simply regarded as the behavior of the laborer to terminate the labor contract, but a de facto state of the laborer leaving the post. This fact has the following possibilities:(1) the worker is absent from work for no reason;(2) the worker fails to terminate the labor contract in accordance with legal procedures;(3) the worker is forced to terminate the labor contract by Article 38 of the Labor Contract Law:(4) the employer unilaterally adjusts the job position or place of work, and the worker refuses to come to the post;(5) the performance of the labor contract is temporarily suspended due to objective reasons. There are two situations in which the performance of the labor contract is temporarily suspended due to objective reasons:(1) the worker is suspected of committing a crime and his personal freedom is restricted. (2) Missing workers. If the laborer is missing, according to Article 44 of the "Labor Contract Law": "The laborer dies, or is declared dead or missing by the people's court", the labor contract is terminated, and the death or disappearance is not declared If the labor relationship is not terminated, the contract cannot be performed due to objective reasons, and the suspension is deemed reasonable. The Relationship between 2.'s Automatic Turnover and Dissolution of Labor Contract (I) automatic resignation is different from unilateral termination of labor contract Article 37 of my country's "Labor Contract Law" stipulates that under legal circumstances, workers have the right to terminate the labor contract in advance; Article 38, paragraph 2, stipulates that the employer uses violence, threats or illegal restrictions on personal freedom. In the case of forcing a worker to work, or using the unit to command in violation of regulations, forcing risky operations to endanger the worker's personal safety, the worker can immediately terminate the labor contract without informing the employer in advance. In other words, the worker should inform the employer when exercising the right of advance notice and immediate discharge. The behavior of the laborer's automatic resignation shows that the laborer neither "in advance" nor "afterwards" informs the employer to leave without saying goodbye. If it causes losses to the employer, it shall bear the corresponding in accordance with Article 90 of the Labor Contract Law. Liability for compensation. According to the general common sense, there is compensation only when there is a loss, and compensation should be based on the premise that there is a loss. If the laborer terminates the labor contract by notifying the employer in writing 30 days in advance, it is a case of illegal termination of the labor contract and causes losses to the employer, he shall be liable for compensation. The actual loss caused to the employer is the premise of the laborer's liability for compensation, and the burden of proof of the loss is borne by the employer. Therefore, the laborer has no reason to terminate the labor contract. Without informing the employer in advance, although it violates the procedural norms of the law, it does not necessarily produce the legal consequences of liability for compensation. The laborer's failure to inform the employer of the termination of the labor contract does not conform to the procedural legal norms for the unilateral termination of the labor contract by the laborer. As a labor relationship with personal relationship and property relationship, whether in the relationship between the two parties to manage and be managed, or in the determination of the subordinate relationship, the worker should implement the procedural obligation of "notice. (II) automatic resignation is different from the employer's termination of labor contract. Since the labor relationship between the two parties is in an uncertain state after the employee leaves the job automatically, it is difficult for the employer to determine the termination of the labor relationship by resignation. The automatic resignation of a (III) is also different from the termination of the labor contract by consensus between the two parties. According to the provisions of Article 36 of the Labor Contract Law, the employer and the employee may terminate the labor contract by consensus. As an act of both parties, whether the laborer first proposes to terminate or the employer first proposes to terminate, as long as the other party agrees and reaches an agreement, the labor contract can be terminated. Therefore, the first condition for both parties to terminate the labor contract by consensus is to reach an agreement between the laborer and the employer, and the automatic resignation of the laborer and the automatic resignation of the employer are not mutually agreed. Determination of automatic 3. turnover When a worker leaves his job automatically, he does not propose to terminate the labor contract based on the circumstances stipulated in the first paragraph of Article 38 of the Labor Contract Law, and his automatic resignation shall be presumed to be resignation due to personal reasons. After the unilateral termination of the labor contract, the laborer's request for the employer to pay economic compensation cannot be supported.
1. the past and present of automatic resignation
Reply of the former General Office of the Ministry of Labor on the Handling of Unauthorized Leaving Employees by Enterprises (No. 68 [1993] of the Ministry of Labor, no longer valid), Reply on the Definition of Automatic Resignation and Absenteeism (No. 48 [1994] of the Ministry of Labor, has expired), "on the employee's unauthorized resignation according to the automatic resignation processing dispute belongs to the scope of labor dispute processing reply" (labor office force word [1992] No. 45, has expired) on the automatic resignation of different norms. In fact, this series of documents is only a behavior description of "automatic resignation", which is a broad sense of workers leaving their jobs. Therefore, the automatic resignation cannot be simply regarded as the behavior of the laborer to terminate the labor contract, but a de facto state of the laborer leaving the post. This fact has the following possibilities:(1) the worker is absent from work for no reason;(2) the worker fails to terminate the labor contract in accordance with legal procedures;(3) the worker is forced to terminate the labor contract by Article 38 of the Labor Contract Law:(4) the employer unilaterally adjusts the job position or place of work, and the worker refuses to come to the post;(5) the performance of the labor contract is temporarily suspended due to objective reasons.
There are two situations in which the performance of the labor contract is temporarily suspended due to objective reasons:(1) the worker is suspected of committing a crime and his personal freedom is restricted. (2) Missing workers. If the laborer is missing, according to Article 44 of the "Labor Contract Law": "The laborer dies, or is declared dead or missing by the people's court", the labor contract is terminated, and the death or disappearance is not declared If the labor relationship is not terminated, the contract cannot be performed due to objective reasons, and the suspension is deemed reasonable.
The Relationship between 2.'s Automatic Turnover and Dissolution of Labor Contract
(I) automatic resignation is different from unilateral termination of labor contract
Article 37 of my country's "Labor Contract Law" stipulates that under legal circumstances, workers have the right to terminate the labor contract in advance; Article 38, paragraph 2, stipulates that the employer uses violence, threats or illegal restrictions on personal freedom. In the case of forcing a worker to work, or using the unit to command in violation of regulations, forcing risky operations to endanger the worker's personal safety, the worker can immediately terminate the labor contract without informing the employer in advance. In other words, the worker should inform the employer when exercising the right of advance notice and immediate discharge. The behavior of the laborer's automatic resignation shows that the laborer neither "in advance" nor "afterwards" informs the employer to leave without saying goodbye. If it causes losses to the employer, it shall bear the corresponding in accordance with Article 90 of the Labor Contract Law. Liability for compensation. According to the general common sense, there is compensation only when there is a loss, and compensation should be based on the premise that there is a loss. If the laborer terminates the labor contract by notifying the employer in writing 30 days in advance, it is a case of illegal termination of the labor contract and causes losses to the employer, he shall be liable for compensation. The actual loss caused to the employer is the premise of the laborer's liability for compensation, and the burden of proof of the loss is borne by the employer. Therefore, the laborer has no reason to terminate the labor contract. Without informing the employer in advance, although it violates the procedural norms of the law, it does not necessarily produce the legal consequences of liability for compensation.
The laborer's failure to inform the employer of the termination of the labor contract does not conform to the procedural legal norms for the unilateral termination of the labor contract by the laborer. As a labor relationship with personal relationship and property relationship, whether in the relationship between the two parties to manage and be managed, or in the determination of the subordinate relationship, the worker should implement the procedural obligation of "notice.
(II) automatic resignation is different from the employer's termination of labor contract.
Since the labor relationship between the two parties is in an uncertain state after the employee leaves the job automatically, it is difficult for the employer to determine the termination of the labor relationship by resignation.
The automatic resignation of a (III) is also different from the termination of the labor contract by consensus between the two parties.
According to the provisions of Article 36 of the Labor Contract Law, the employer and the employee may terminate the labor contract by consensus. As an act of both parties, whether the laborer first proposes to terminate or the employer first proposes to terminate, as long as the other party agrees and reaches an agreement, the labor contract can be terminated.
Therefore, the first condition for both parties to terminate the labor contract by consensus is to reach an agreement between the laborer and the employer, and the automatic resignation of the laborer and the automatic resignation of the employer are not mutually agreed.
Determination of automatic 3. turnover
When a worker leaves his job automatically, he does not propose to terminate the labor contract based on the circumstances stipulated in the first paragraph of Article 38 of the Labor Contract Law, and his automatic resignation shall be presumed to be resignation due to personal reasons. After the unilateral termination of the labor contract, the laborer's request for the employer to pay economic compensation cannot be supported.
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