Original title: Case-by-case law|Whether the employee "left by himself", who should provide evidence?
Brief facts of the case
In February 2022, Mr. Li joined a training company and worked as a therapist, and the two parties signed a one-year labor contract from February 2022 to February 2023.
The contract stipulates that Li's monthly salary is the minimum wage standard of 2,280 yuan plus business commission.
In June 2022, due to the impact of the epidemic, the company's business was relatively light, and Li took the initiative to start a part-time cooperation model with the company.
The company agreed to Li's suggestion, settled all wages and commissions from February to June 2022 with Li, and paid the social insurance payable by the company into cash and paid it to Li.
Li confirmed and accepted on WeChat.
After July 2022, Li has been in a state of coming to work if he has business and no longer coming to work if he has no business.
In January 2023, Li suddenly asked the company for his salary from July 2022 to January 2023, believing that he was an in-service employee and the company should pay the 7 months of full-time salary.
Of course, the training company refused, saying that from July 2022, Li would change from full-time to part-time, and the labor relationship between the two parties had already been terminated, where would the full-time salary come from.
Li believes that he has never proposed to resign, but due to the epidemic, the company will start a long vacation in July 2022, and provided a WeChat chat record with the company's legal representative to confirm the "long vacation";
The two parties disputed, and Li immediately filed for labor arbitration.
So, whether Li "left by himself", who should provide evidence?
Case Analysis
The focus of the dispute in this case is how to prove that the employment relationship has been de facto terminated, and if it is not terminated, who should bear the adverse consequences?
1. What are the legal requirements for an employer to terminate a labor contract in accordance with the law?
The justice of the law derives from both substance and procedure. Therefore, when an employer terminates an employment contract, it must not only be fair in substance, but also fair in procedure. The legal requirements for an employer to terminate a labor contract in accordance with the law and regulations include:
A motion for discharge is filed in accordance with the law. Regardless of whether the employee violates discipline or is terminated through negotiation between the two parties, the employer should collect and fix relevant evidence in advance, including the facts of the employee's disciplinary violation and the agreement negotiated by both parties, and then file a motion for termination based on sufficient and conclusive evidence.
Draft a written notice of termination. There should be a sufficient legal basis for terminating the labor contract, and the employer should draft a written Notice of Termination of the Contract, which should clearly inform the employee of the reasons for termination and the relevant grounds for termination, and should affix the official seal of the employer and indicate the date of the notice.
Seek the opinion of the trade union. When terminating a labor contract, the employer shall notify the labor union of the reasons in advance. Employers that have not established a trade union organization shall solicit the opinions of the trade union at the next higher level.
The notice of termination shall be served on the employee himself/herself. The Notice of Termination of Labor Contract needs to be served on the employee himself, and if it is not served, it will not have the effect of terminating the contract.
Cancellation procedures. The employer shall issue a certificate of dissolution or termination of the labor contract when dissolving or terminating the labor contract, and complete the formalities for the transfer of files and social insurance for the employee within 15 days.
2. Is the oral termination of the labor contract valid?
According to the current laws and regulations, the termination of an employment contract by an employer should generally be in writing, so is the oral termination of the employment contract valid?
Termination of an employment contract in writing is a more standard practice in practice. Article 37 of the Labor Contract Law stipulates that an employee may terminate an employment contract by notifying the employer in writing 30 days in advance. Article 50 of the Labor Contract Law stipulates that an employer shall issue a certificate of dissolution or termination of an employment contract upon dissolution or termination. Article 89 of the Labor Contract Law stipulates that if an employer fails to issue a written certificate of dissolution or termination of a labor contract to an employee in violation of the provisions of this Law, the labor administrative department shall order it to make corrections, and shall be liable for compensation if it causes damage to the employee.
If the employer insists on terminating the labor contract in writing, it will also give a small number of employers an opportunity to take advantage of the opportunity or deliberately fail to provide a written certificate of termination of the labor contract, so that the employee who has already terminated the labor relationship will not be able to recover economic compensation or compensation, which is not conducive to the fair and just settlement of labor disputes, nor is it conducive to safeguarding the legitimate rights and interests of employees in accordance with the law.
Therefore, although the law stipulates that the termination of an employment contract shall be in writing, the written form is not a substantive requirement for the termination of an employment contract. From the perspective of judicial practice, whether the act of oral termination of the labor contract is established and effective should be judged based on the objective facts and legal basis of the termination of the labor contract.
In other words, in principle, the termination of the employment relationship should be carried out in writing, but if the employee has other evidence to prove that the employment relationship has been terminated, or the employer acknowledges that the employment relationship has been terminated, even if the employer gives oral notice of the termination of the employment contract, the fact that the employment relationship has been terminated should be confirmed.
3. Who should provide evidence for the oral termination of the labor contract?
In real life, the act of verbally terminating an employment contract can easily lead to disputes, and the employer and the employee insist on their own words, making it difficult for the employee to protect his or her rights without evidence.
Article 44 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases provides that the employer shall bear the burden of proof in the event of a labor dispute arising from an employer's decision to dismiss, dismiss, dismiss, terminate the labor contract, reduce the labor remuneration, calculate the employee's working years, etc. It should be reminded that the requirement that the employer bear the burden of proof on the legality of the termination of the employment relationship does not mean that the employer has to provide evidence on whether to make the decision to terminate the employment relationship.
In accordance with Article 6 of the Labor Dispute Mediation and Arbitration Law, which stipulates that "in the event of a labor dispute, the parties shall have the responsibility to provide evidence for their own claims", and the employee shall bear the burden of proof if he claims that the employer has terminated the labor relationship. If the employee fails to provide evidence to prove the fact that the employer has verbally terminated the employment contract, he or she will have to bear the adverse consequences of failing to provide evidence.
Then, in the case of oral termination of an employment contract, how to prove that the employment relationship has been de facto terminated?
As far as the employee is concerned, after receiving the employer's verbal notice of termination of the contract, the employee should not leave on his own if the employer does not explain the reason for the resignation and does not go through the resignation formalities for him/herself. Otherwise, the employer will not recognize that the employment relationship between the two parties has been terminated, and it will be difficult for the employee to collect evidence of "oral termination", and the employee will face the danger of losing the lawsuit.
As far as the employer is concerned, after making a decision to terminate the labor contract orally, it should improve a series of legal procedures such as drafting the notice of termination of the labor contract, soliciting the opinions of the labor union, serving it on the employee himself, and going through the termination procedures in accordance with the law, so that the legal requirements for the act of oral termination of the labor contract are complete, and the termination procedures are perfect, so as to truly prevent problems before they occur.
To sum up, if an employee claims that the employer has verbally terminated the labor contract, it must provide evidence that the employer unilaterally terminated the labor contract, such as confiscating the access control card, kicking out the work group, parking wages, suspending social security payments, and handing over work. Only when the parties to the employment relationship testify to their own claims can the judiciary clearly judge the merits.
In this case, the WeChat chat records submitted by Mr. Li with the company's legal representative can prove that the company was aware of Mr. Li's request for a "long vacation", but it did not pay enough attention to it, nor did it raise a clear and clear objection. The company argued that Mr. Li took the initiative to change from full-time to part-time, and the two parties agreed that the labor relationship had been terminated, but it did not issue a written notice of termination of the labor contract in time and go through the relevant procedures. The WeChat chat record of "long vacation" submitted by Li and the one-year labor contract signed between the company and Li all prove that although Li did not provide continuous labor, the labor relationship with the company still exists, and the company should bear the corresponding legal responsibility. After the mediation of the arbitral tribunal, the training company paid Li a one-time economic compensation of 10,000 yuan, and the case was closed.
Regulatory Links
Article 50 of the Labor Contract Law The employer shall issue a certificate of dissolution or termination of the labor contract when dissolving or terminating the labor contract, and complete the formalities for the transfer of the employee's file and social insurance relationship within 15 days.
(Author: Liu Yelin, member of the Party Group of the Zhenjiang Federation of Trade Unions, Jiangsu Province, and head of the Discipline Inspection and Supervision Group of the Zhenjiang Federation of Trade Unions assigned by the Municipal Commission for Discipline Inspection and Supervision Source: Editorial Department of "Trade Union Information")
Source: Workers' Daily WeChat public account