Elimination of the last place, salary reduction and transfer... Is it legal to disguise layoffs in disguise?

Some enterprises adopt strict attendance, transfer and salary reduction to carry out the so-called "survival of the fittest" for employees, and lawyers remind -

Disguised means of layoffs in disguise, can not hide from the "law" eyes of the golden eye

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How long is the statutory medical period for employees to take sick leave for cancer treatment? What are the statutory procedures for a company to remove a trade union chairman? Employee appraisal is set as the last grade, is it incompetent? In practice, some enterprises have adopted means such as last-place elimination, strict attendance, salary reduction and post adjustment in disguise. The lawyer reminds that these "camouflage" means seem to be legal, but in fact they infringe on the legitimate rights and interests of employees, which is worth vigilance.

A few days ago, the Jiangsu Provincial Federation of Trade Unions released the top ten typical cases of trade union legal aid in the province, and the reporter combed and found that three of the cases involved enterprises taking measures such as last-place elimination, strict attendance, salary reduction and post adjustment to lay off employees in disguise. These "camouflage" means seem to be legal, but in fact they infringe on the legitimate rights and interests of employees, which is worth vigilance.

Cancer treatment can not be regarded as absenteeism

In August 2018, Xu joined a mechanical equipment manufacturing co., LTD. in Zhenjiang as a warehouse supervisor with a monthly salary of 5,000 yuan. In August 2019, Xu was diagnosed with ovarian cancer, so he was hospitalized, underwent surgery, and received chemotherapy. During the period of medical leave, Xu Mou regularly went to the hospital for follow-up consultations and submitted a leave slip issued by the hospital to the unit. In June 2020, the company unilaterally terminated the labor contract on the grounds that Xu refused to come to work and failed to perform the leave procedures in accordance with the company's rules and regulations, and Xu's family was in trouble. In January 2021, after repeated fruitless consultations with the unit, Xu applied for legal aid from the Zhenjiang Federation of Trade Unions.

The focus of the dispute between the two parties is how long the statutory medical period that Xu should enjoy should be. The employer believes that according to the Provisions on the Medical Period for Illness or Non-work-related Injuries of Employees of enterprises, the maximum medical period that Xu should enjoy is 6 months. Xu believes that if he suffers from cancer and receives surgery, chemotherapy and other treatment, the medical treatment period he should enjoy should be no less than 24 months.

Legal aid lawyer Zhang Hongfei believes that Xu's claim is reasonable and that the unilateral termination of the labor contract by the enterprise is illegal. Subsequently, the Jurong Labor and Personnel Dispute Arbitration Commission ruled on the case: the employer continued to perform the original labor contract and paid Xu 6114 yuan in withheld and owed wages. The company was not satisfied with the ruling and filed a lawsuit with the court.

Lawyer Zhang Hongfei believes that according to the provisions of the former Ministry of Labor's "Notice on the Implementation of the Provisions on the Medical Period for Illness or Non-work-related Injuries of Enterprise Employees", for some employees suffering from special diseases (such as cancer, mental illness, paralysis, etc.) who cannot be cured within 24 months, the medical period can be appropriately extended, which also means that the medical treatment period that the recipient should enjoy shall not be less than 24 months at the shortest. The employer unilaterally terminated the labor contract on the grounds of absenteeism without fully understanding the relevant provisions of the medical treatment period, which was obviously illegal.

In the end, the court found that the company's termination of the labor contract was illegal, and according to the 24-month medical period, the company should pay the recipient a total of 90,000 yuan in various expenses such as sick leave wages and compensation for illegal termination of the labor contract. With the consent of both parties, the court presided over the mediation, and finally the two parties reached an agreement, and the company compensated Xu Mou for a one-time compensation of 85,000 yuan.

Disguised layoffs are not advisable

Tan entered a low-voltage equipment company in Nanjing in 2006 to engage in financial work. In October 2018, Tan was elected as the chairman of the trade union in the company's trade union re-election. Due to the inconsistency with the candidates designated by the company's main leaders, Tan mou believed that he was treated unfairly in his work. The company asked Tan to resign voluntarily on the grounds of illegal reimbursement, and after being rejected by Tan, it was transferred to a lower salary in November 2018. In November of the same year, the company unilaterally terminated the labor contract with employee Cai Mou, and when consulting the trade union, Tan raised objections on behalf of the trade union, but was again subjected to a salary cut.

In the case of repeated communication with the company that could not be resolved, in November 2019, Tan applied for labor dispute arbitration to protect his rights. In December of the same year, the company unilaterally terminated the labor contract with Tan and sent a letter to the superior trade union, clarifying that Tan's position as chairman of the trade union was naturally relieved from the date of termination of the labor contract.

During the trial, legal aid lawyer Zhang Shiliang argued that the company had no factual and legal basis for transferring Tan to a post and reducing his salary on the grounds of illegal reimbursement, which infringed tan's legal rights.

In addition, Article 17 of the Trade Union Law stipulates that "when the term of office of the chairman and vice-chairman of a trade union has not expired, his work shall not be transferred at will." When it is necessary to transfer due to work, the consent of the trade union committee at the same level and the trade union at the next higher level shall be obtained. The chairman and vice-chairman of the trade union shall convene a general meeting of members or a representative assembly of members to discuss it, and shall not be recalled unless it is approved by all members of the general assembly or by a majority of all the representatives of the general assembly of members." Therefore, the company's removal of Tan from the post of chairman of a trade union is also an illegal act.

In the end, the court ordered the company to continue to perform the labor contract with Tan, and within 10 days from the effective date of the judgment, pay Tan the difference in salary treatment of 40,546.67 yuan from November 2018 to November 2019, and at the same time pay Tan the wage loss from December 2019 to the date of restoration of the labor relationship according to the standard of the average monthly wage payable of 8960 yuan.

Elimination of the last place is not legal

Wang joined a computer system company in Jiangsu in 2010 as an ordinary engineer and engaged in software development. In 2015, he signed an open-ended labor contract with the company, and since then, he has signed an employment contract with the company for management positions every year. In March 2021, in accordance with the rules and regulations, the company issued a notice of termination of the labor contract to Wang on the grounds that Wang was incompetent for work.

According to the provisions of the company's employee assessment manual, the company's employee assessment is divided into A, B, C, etc., A class assessment accounts for 20% of all employees, B class assessment accounts for 70% of all employees, Class C assessment accounts for 10% of all employees, if employees are assessed as C grade twice in a row, the company has the right to terminate the labor contract. Wang was assessed as Grade C twice in 2019 and 2020, and the company terminated the labor relationship with Wang accordingly. Wang applied for legal aid to the Nantong Federation of Trade Unions.

Gu Yudan, director of the Legal Work Department of the Nantong Federation of Trade Unions, believes that the company's assessment system is actually the last-place elimination system, and all employees of the company, no matter how excellent, will always be assessed as C grade, and the assessment of C grade is not necessarily related to incompetent work, and cannot draw an equal sign; even if the appraisal is C grade is proved to be indeed incompetent, it cannot be directly "eliminated from the last place", but should be given training or adjusted according to the provisions of Article 40 of the Labor Contract Law. And it can be dismissed after re-assessment of incompetence.

After mediation, the company was aware of the potential labor risks in its rules and regulations, promised to amend the company's rules and regulations, and made financial compensation for Wang's case. Wang believes that the rift between the two sides has deepened, and it is of little significance to continue to stay in the enterprise, and agrees to terminate the labor contract and receive economic compensation. In the end, both parties unanimously agreed to terminate the labor contract, and the company paid an additional 10 months' wages as compensation while paying economic compensation to Wang. (Reporter Huang Hongtao, correspondent of this newspaper, Liu Weiwei)

Source: Workers Daily