"If you have not come to work for 3 days and have not been approved by the company to take leave, the company will treat you as absenteeism...... If you fail to go to work within the time limit, you will be terminated from the labor contract in accordance with the relevant regulations of the company, and all the consequences will be borne by yourself!"
"Due to the distance between the two parties, the family arranged two wedding banquets, and in the early stage, for the company's point of view, the wedding date has been adjusted once, and now the newly adjusted wedding date is approaching, and I can't make any adjustments, so I have to ask for leave in these days. ”
The company issued a serious notice, the employee gave a helpless reply, the "problem" was unsolvable, and the two sides finally went to court.
Recently, the Shanghai No. 1 Intermediate People's Court concluded the labor contract dispute case, and the second instance changed the judgment to the company to pay the employee 46,000 yuan in compensation for illegally terminating the labor contract.
The wedding date has arrived, and the company has delayed the leave
Xiao Zhong is a designer in the marketing department of a psychological consulting company, and wants to take advantage of the National Day holiday to take marriage leave and return to his hometown for a wedding. So as early as August, Xiao Zhong first verbally explained the leave to the leader, but was not approved.
Xiao Zhong once again submitted a written leave application to the company, the company replied that the company is mainly engaged in research and consulting services for children with ADHD, which belongs to a special industry, and the National Day period coincides with the peak business season, and the company's National Day vacation plan is from October 1 to October 3, October 4 to October 7 work, and October 8 to October 11 to make up for the holiday.
The company still did not agree to Xiao Zhong's application for marriage leave due to business considerations, and suggested that Xiao Zhong ask for leave at another time. Xiao Zhong said that he had adjusted the marriage date once before, and it was inconvenient to make adjustments this time, and asked if the marriage leave was not approved, whether it was feasible to ask for personal leave in the past few days. The company did not reply to this, and in late September, it formulated and issued the "Attendance Management Measures" for immediate dismissal after 3 consecutive days of absenteeism or 5 days of absenteeism in a year.
Xiao Zhong returned to his hometown to hold a wedding as scheduled, which also appeared in the beginning of the article.
The company believed that Xiao Zhong was absent from work for 5 days, which seriously violated the company's rules and regulations, and terminated the labor contract with Xiao Zhong on October 7.
Xiao Zhong filed a labor dispute arbitration for this reason, demanding that the company pay compensation for the illegal termination of the labor contract, and because the request was not supported by arbitration, Xiao Zhong filed a lawsuit with the court.
First instance: The company's business scope is special and does not constitute illegal termination
In the first instance, Xiao Zhong requested the court to order the company to pay more than 82,000 yuan in compensation for the illegal termination of the labor contract.
The court of first instance held that, considering the business scope and the nature of the work of the psychological consulting company, the work arrangements for the National Day holiday were reasonable, and both parties confirmed that Xiao Zhong was only an ordinary staff member of the company, so based on the situation of the company and Xiao Zhong's position, the company did not agree to Xiao Zhong's application for marriage leave, and it was reasonable to propose to replace the leave.
Xiao Zhong took a vacation on his own, and still did not arrive at his post on time after being urged by the company many times. There is nothing wrong with the company terminating the employment contract.
Therefore, the court of first instance did not support Xiao Zhong's request for payment of damages for illegal termination. Xiao Zhong was not satisfied and appealed to the Shanghai No. 1 Intermediate People's Court.
Second instance: The company's punishment was excessive, constituting illegal termination
In the second instance, Xiao Zhong argued that the company's refusal of his marriage leave was unreasonable, his position was not the main position, and the leave would not affect the company's daily work. Xiao Zhong requested that the company be sentenced to pay more than 82,000 yuan in compensation for illegal termination of the labor contract.
The psychological consulting company believes that the company has few employees, each employee's work is in a state of saturation, it is difficult to adjust personnel to replace their jobs during the peak season of National Day, and Xiao Zhong has been on leave for too long. Xiao Zhong did not agree with this, but considering the company's actual operating conditions and other factors, the amount of compensation for changing the illegal termination of the labor contract was 46,000 yuan.
The Shanghai No. 1 Intermediate People's Court held after hearing that it was true that Xiao Zhong did not go to work for several days without the approval of the leave, but as far as the reason for the leave was concerned, Xiao Zhong's leave to return to his hometown to hold a wedding was in line with the traditional customs and Xi of the mainland, and the reason for the leave was legitimate; as far as the leave process was concerned, Xiao Zhong had applied for leave to the person in charge of the company several times for the wedding, explained the reasons for the leave, explained his own difficulties, and said that he had paid attention in the process of taking personal leave when the company did not agree to take annual leave and marriage leave. As far as the number of days of leave is concerned, combined with the reason for Xiao Zhong's leave and the location of the wedding, the number of days of leave is difficult to say unreasonable.
On the other hand, the psychological counseling company's handling of Xiao Zhong's application for leave and subsequent non-work behavior: from the work responsibilities of Xiao Zhong and the work content that Xiao Zhong needs to complete during the leave period stated by both parties, it is difficult to determine that there is an urgency that Xiao Zhong cannot leave his post, and the reasons for the psychological counseling company's refusal to grant leave are insufficient;
Judging from the rules and regulations for the termination of Xiao Zhong's labor contract by the psychological consulting company, the company formulated it in late September knowing that Xiao Zhong needed to take leave due to the wedding and that the wedding date was difficult to change, which has a certain pertinence;
The company also stated that it did not disagree with Xiao Zhong's marriage leave, but only thought that Xiao Zhong's leave was too long, but did not inform Xiao Zhong, and after deducting the time of leave that he considered reasonable, Xiao Zhong's absence from work was less than 3 days, and its handling of the termination of the labor contract was obviously excessive punishment.
In summary, the psychological consulting company's handling of Xiao Zhong's application for leave based on the wedding and his subsequent failure to go to work lacked legality, reasonableness, and legitimacy, and constituted illegal termination. The amount of compensation for illegal termination claimed by Xiao Zhong is not higher than the statutory standard and should be allowed.
In the end, the Shanghai No. 1 Intermediate People's Court changed the judgment to the psychological consulting company to pay Xiao Zhong 46,000 yuan in compensation for illegally terminating the labor contract.
(The names mentioned in the article have been changed)
What the judge said
Sun Shaojun, the presiding judge of the case and the assistant head of the labor dispute team of the Civil Trial Division of the Shanghai No. 1 Intermediate People's Court, said that employers have the right to formulate rules and regulations based on the needs of production and operation and to manage the employment of employees in accordance with the law, but the exercise of this right should be reasonable, reasonable and legitimate in accordance with the law, and it cannot blindly pursue its own economic benefits while ignoring or infringing on the legitimate rights and interests of employees.
As an employee, while protecting his or her own rights and interests in accordance with the law, it is also advisable to consider the actual operating pressure of the employer in a timely manner and reasonably determine the amount of the claim.
As far as judicial adjudicators are concerned, on the premise of fully respecting the wishes of the parties, they should actively guide the workers and the employer to understand and cooperate with each other, and strive to make the adjudication result take into account the protection of the legitimate rights and interests of the workers and the survival and development of the employing enterprise.
[Source: Shanghai No. 1 Middle Court]
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