Viewpoint | Analysis of automatic turnover of workers
Published:
2021-12-25
Employee turnover has become a prominent phenomenon, resulting in the plight of enterprise personnel management. After the employment dispute is sued, the court is also faced with the problem of vague qualitative and difficult fact-finding. In this paper, the author analyzes the situation and nature of the automatic turnover of employees in enterprises in the light of judicial practice, and puts forward the corresponding solutions. 1. the distinction between automatic separation and termination of the contract. According to the "Reply on the Handling of Unauthorized Resignation of Employees by Enterprises", automatic resignation means that the worker fails to perform the termination procedures when terminating the labor relationship, leaves the post without authorization, or leaves the unit without completing the termination procedures. For example, he left without permission because he resigned or asked to terminate the contract; or left without saying goodbye without explaining the reason; or "job-hopping" without authorization under the temptation of generous treatment. First of all, the automatic separation is different from the unilateral termination of the labor contract. Article 37 of my country's Labor Contract Law stipulates that under legal circumstances, workers have the right to terminate labor contracts with advance notice and immediate termination. The second paragraph of Article 38 stipulates that in the case where the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or the employer commands in violation of regulations or forces risky operations to endanger the personal safety of the laborer, the laborer The labor contract can be terminated immediately without informing the employer in advance. In other words, except for the circumstances stipulated in the 38th of the Labor Contract Law, the laborer should inform the employer when exercising the right of advance notice and immediate termination. If the employee's automatic resignation does not meet the above-mentioned situation without prior notification to the employer and causes losses to the employer, he shall bear the corresponding liability for compensation in accordance with Article 90 of the Labor Contract Law. Secondly, automatic turnover is different from the employer to terminate the labor contract. As the worker resigns automatically, whether the labor relationship between the two parties is in a state of uncertainty, it is difficult for the employer to resign to determine the cause of the termination of the labor relationship, in practice, the employer often makes the decision to terminate the labor contract on the grounds of automatic resignation. Finally, automatic resignation 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 to reach an agreement, the labor contract can be terminated. Therefore, the first condition for the two parties to terminate the labor contract through consensus is the 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. Therefore, voluntary separation does not necessarily produce legal effects. In the case of non-compliance with the law, automatic resignation is the illegal termination of the labor contract by the laborer, and the employer can require the laborer to compensate for the loss based on the law. The decision of the employer to terminate the labor contract based on the fact of the worker is an act of unilateral termination of the labor contract by the employer. Identification and Treatment of 2. Automatic Turnover When the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or the employer commands in violation of regulations or forces risky operations to endanger the personal safety of the laborer, the act of the laborer's automatic resignation is based on the labor contract law. According to the provisions of Article 8, paragraph 2, the labor relationship is terminated, and the employer may be required to pay economic compensation in accordance with Article 46 of the Labor Contract Law. 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. The most important dispute in the labor contract dispute is the dispute caused by the automatic resignation, that is, the employer unilaterally terminates the labor contract in accordance with the labor rules and regulations of the unit for the laborer who leaves the post without authorization and without justifiable reason. From the perspective of labor dispute handling practice, the main situations of automatic resignation are as follows: first, the laborer leaves without saying goodbye due to his own reasons, including physical quality, professional quality, communication ability, family changes, living environment and other factors; Second, the laborer's absenteeism reaches a certain period of time without reason, among which "absenteeism" refers to leaving the post without due leave formalities and without proper reasons; third, the laborers went abroad overdue. To deal with the above problems, attention should be paid to the following aspects: 1. Confirmation of the fact of automatic resignation To determine the automatic resignation of workers, three points should be grasped: first, the workers have the subjective will to leave the enterprise and are unwilling to return to the enterprise within the prescribed time limit; second, they have not fulfilled the relevant procedures or have not been approved by the enterprise although they have fulfilled the procedures; third, exceed the prescribed time limit. Article 6 of the Supreme People's Court's "Several Provisions on Evidence in Civil Litigation" and Article 13 of the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases" both stipulate that the employer has made expulsion, removal, dismissal, and termination of labor contracts. If a labor dispute occurs due to decisions such as reducing labor remuneration and calculating the working years of the worker, the employer shall bear the burden of proof. As a manager, the employer is always in an active position, so the employer should bear the burden of proof for its claim of "voluntary resignation" of employees. For example, Article 14 of the (II) of Guiding Opinions on the Trial of Labor and Personnel Dispute Cases by the Higher People's Court of Jiangsu Province stipulates: "The laborer claims to be dismissed orally by the employer, while the employer claims that the laborer leaves the job automatically. The fact that the employee leaves the company automatically bears the burden of proof, and if the employer cannot prove it, it shall bear the adverse consequences." The employer may prove the fact that the worker has not provided labor without justifiable reasons by providing a complete attendance sheet. 2. Review of the legality of the termination of the labor contract by the employer If a worker leaves the post without permission and without proper reason without performing the leave formalities in accordance with the regulations, his behavior does not conform to the provisions of the law; according to the automatic resignation treatment, it is the act of the employer unilaterally terminating the labor contract in accordance with the labor rules and regulations of the unit. Therefore, to examine the legality of the employer's termination of the labor contract, it is also necessary to examine the legality of the rules and regulations on which the employer has made the basis for the termination of the labor contract, that is, whether it has been democratically formulated, whether it has been publicized or informed to the workers, whether the contents of the rules and regulations are legitimate, and whether the employer's decision to terminate the labor contract should be informed to the trade union and delivered to the workers. 3. Tilt to protect the rights and interests of workers and balance the interests of employers. The reason why the employer makes the decision to terminate the labor contract is the illegal behavior of the laborer. When dealing with such cases, it is not only necessary to strengthen the burden of proof of the employer and prevent the employer from illegally terminating the laborer who does not have the fact of automatic resignation, but also to consider the employer to terminate the labor contract in the case of the automatic resignation of the laborer, so as to prevent the expansion of enterprise losses and maintain the stability of employment. If the technical and management backbones needed for the production and operation of the enterprise "change jobs" without authorization regardless of the interests of the enterprise, this is not only treated as automatic resignation, but also investigated for compensation liability according to labor laws and regulations; if the enterprise has a large number of surplus employees in production, it is necessary to make more analysis when determining, focusing on whether the employees' failure to provide labor is justified. If a worker seriously violates labor discipline, the employing unit may terminate the labor contract in accordance with the provisions of paragraph 2 of Article 25 of the Labor Law. For example, Article 45 of the Opinions of the People's Court of Zhejiang Higher People's Court on Several Issues Concerning the Trial of Labor Dispute Cases stipulates that if the employee fails to go through the leave formalities without justifiable reasons and leaves the post without authorization for more than 15 consecutive days, the employer's rules and regulations shall be implemented in accordance with relevant regulations; if the employer's rules and regulations are not stipulated, the employer may terminate the labor contract on the grounds that the employee seriously violates labor discipline.
Employee turnover has become a prominent phenomenon, resulting in the plight of enterprise personnel management. After the employment dispute is sued, the court is also faced with the problem of vague qualitative and difficult fact-finding. In this paper, the author analyzes the situation and nature of the automatic turnover of employees in enterprises in the light of judicial practice, and puts forward the corresponding solutions.
1. the distinction between automatic separation and termination of the contract.
According to the "Reply on the Handling of Unauthorized Resignation of Employees by Enterprises", automatic resignation means that the worker fails to perform the termination procedures when terminating the labor relationship, leaves the post without authorization, or leaves the unit without completing the termination procedures. For example, he left without permission because he resigned or asked to terminate the contract; or left without saying goodbye without explaining the reason; or "job-hopping" without authorization under the temptation of generous treatment.
First of all, the automatic separation is different from the unilateral termination of the labor contract. Article 37 of my country's Labor Contract Law stipulates that under legal circumstances, workers have the right to terminate labor contracts with advance notice and immediate termination. The second paragraph of Article 38 stipulates that in the case where the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or the employer commands in violation of regulations or forces risky operations to endanger the personal safety of the laborer, the laborer The labor contract can be terminated immediately without informing the employer in advance. In other words, except for the circumstances stipulated in the 38th of the Labor Contract Law, the laborer should inform the employer when exercising the right of advance notice and immediate termination. If the employee's automatic resignation does not meet the above-mentioned situation without prior notification to the employer and causes losses to the employer, he shall bear the corresponding liability for compensation in accordance with Article 90 of the Labor Contract Law.
Secondly, automatic turnover is different from the employer to terminate the labor contract. As the worker resigns automatically, whether the labor relationship between the two parties is in a state of uncertainty, it is difficult for the employer to resign to determine the cause of the termination of the labor relationship, in practice, the employer often makes the decision to terminate the labor contract on the grounds of automatic resignation.
Finally, automatic resignation 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 to reach an agreement, the labor contract can be terminated. Therefore, the first condition for the two parties to terminate the labor contract through consensus is the 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.
Therefore, voluntary separation does not necessarily produce legal effects. In the case of non-compliance with the law, automatic resignation is the illegal termination of the labor contract by the laborer, and the employer can require the laborer to compensate for the loss based on the law. The decision of the employer to terminate the labor contract based on the fact of the worker is an act of unilateral termination of the labor contract by the employer.
Identification and Treatment of 2. Automatic Turnover
When the employer forces the laborer to work by means of violence, threat or illegal restriction of personal freedom, or the employer commands in violation of regulations or forces risky operations to endanger the personal safety of the laborer, the act of the laborer's automatic resignation is based on the labor contract law. According to the provisions of Article 8, paragraph 2, the labor relationship is terminated, and the employer may be required to pay economic compensation in accordance with Article 46 of the Labor Contract Law.
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.
The most important dispute in the labor contract dispute is the dispute caused by the automatic resignation, that is, the employer unilaterally terminates the labor contract in accordance with the labor rules and regulations of the unit for the laborer who leaves the post without authorization and without justifiable reason. From the perspective of labor dispute handling practice, the main situations of automatic resignation are as follows: first, the laborer leaves without saying goodbye due to his own reasons, including physical quality, professional quality, communication ability, family changes, living environment and other factors; Second, the laborer's absenteeism reaches a certain period of time without reason, among which "absenteeism" refers to leaving the post without due leave formalities and without proper reasons; third, the laborers went abroad overdue. To deal with the above problems, attention should be paid to the following aspects:
1. Confirmation of the fact of automatic resignation
To determine the automatic resignation of workers, three points should be grasped: first, the workers have the subjective will to leave the enterprise and are unwilling to return to the enterprise within the prescribed time limit; second, they have not fulfilled the relevant procedures or have not been approved by the enterprise although they have fulfilled the procedures; third, exceed the prescribed time limit. Article 6 of the Supreme People's Court's "Several Provisions on Evidence in Civil Litigation" and Article 13 of the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases" both stipulate that the employer has made expulsion, removal, dismissal, and termination of labor contracts. If a labor dispute occurs due to decisions such as reducing labor remuneration and calculating the working years of the worker, the employer shall bear the burden of proof. As a manager, the employer is always in an active position, so the employer should bear the burden of proof for its claim of "voluntary resignation" of employees. For example, Article 14 of the (II) of Guiding Opinions on the Trial of Labor and Personnel Dispute Cases by the Higher People's Court of Jiangsu Province stipulates: "The laborer claims to be dismissed orally by the employer, while the employer claims that the laborer leaves the job automatically. The fact that the employee leaves the company automatically bears the burden of proof, and if the employer cannot prove it, it shall bear the adverse consequences." The employer may prove the fact that the worker has not provided labor without justifiable reasons by providing a complete attendance sheet.
2. Review of the legality of the termination of the labor contract by the employer
If a worker leaves the post without permission and without proper reason without performing the leave formalities in accordance with the regulations, his behavior does not conform to the provisions of the law; according to the automatic resignation treatment, it is the act of the employer unilaterally terminating the labor contract in accordance with the labor rules and regulations of the unit. Therefore, to examine the legality of the employer's termination of the labor contract, it is also necessary to examine the legality of the rules and regulations on which the employer has made the basis for the termination of the labor contract, that is, whether it has been democratically formulated, whether it has been publicized or informed to the workers, whether the contents of the rules and regulations are legitimate, and whether the employer's decision to terminate the labor contract should be informed to the trade union and delivered to the workers.
3. Tilt to protect the rights and interests of workers and balance the interests of employers.
The reason why the employer makes the decision to terminate the labor contract is the illegal behavior of the laborer. When dealing with such cases, it is not only necessary to strengthen the burden of proof of the employer and prevent the employer from illegally terminating the laborer who does not have the fact of automatic resignation, but also to consider the employer to terminate the labor contract in the case of the automatic resignation of the laborer, so as to prevent the expansion of enterprise losses and maintain the stability of employment. If the technical and management backbones needed for the production and operation of the enterprise "change jobs" without authorization regardless of the interests of the enterprise, this is not only treated as automatic resignation, but also investigated for compensation liability according to labor laws and regulations; if the enterprise has a large number of surplus employees in production, it is necessary to make more analysis when determining, focusing on whether the employees' failure to provide labor is justified. If a worker seriously violates labor discipline, the employing unit may terminate the labor contract in accordance with the provisions of paragraph 2 of Article 25 of the Labor Law. For example, Article 45 of the Opinions of the People's Court of Zhejiang Higher People's Court on Several Issues Concerning the Trial of Labor Dispute Cases stipulates that if the employee fails to go through the leave formalities without justifiable reasons and leaves the post without authorization for more than 15 consecutive days, the employer's rules and regulations shall be implemented in accordance with relevant regulations; if the employer's rules and regulations are not stipulated, the employer may terminate the labor contract on the grounds that the employee seriously violates labor discipline.
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