Who should I tell in a divorce?
Does that include the company's boss and HR?
Recently, such an incident happened in Shanghai, which rushed to the hot search #Employee divorce was fired for not taking the initiative to report#
Xiao Du, an executive of a company in Shanghai, suddenly received a notice of dismissal from the company because he was divorced, but he did not take the initiative to report to the company......
In this regard, Xiao Du, who was fired, said: I can't understand it! The company said: Serious violation of rules and regulations, there is nothing wrong with dismissal!
Netizens were also stunned: Is there such a thing??
Both sides insisted on their own words and sued the court
So, what will the court decide?
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Event recap
Xiao Du joined a food group company in Shanghai on February 6, 2017. After several years of work, the two parties renewed the employment contract valid from March 1, 2020 to February 28, 2026, and Xiao Du was promoted to a senior management in the Office of the Chief Operating Officer, and signed the company's management rules and regulations, and signed an agreement on ethics, confidentiality obligations, and conflict of interest resolution.
The agreement stipulates that employees need to take the initiative to avoid personal cases, and if the work involves a project or matter, the relevant responsible person, supplier and other stakeholders have a special relationship with them (such as kinship, investment relationship, etc.), they need to take the initiative to report immediately.
The Measures for the Administration of Rewards and Punishments stipulate that those who fail to take the initiative to declare or falsely declare their kinship in a timely manner due to changes in kinship due to new recruits, job changes, marital changes, etc., shall be regarded as a serious violation of the company's rules or discipline and may be negligently terminated from the employment relationship. Xiao Du declared that he was married when he joined the company, and the company found out through the judgment website in January 2021 that he had divorced in December 2017.
Therefore, on January 20, 2021, the company issued a notice of rescission/termination of the contract to Xiaodu.
On February 3, Xiao Du applied to the Shanghai Labor and Personnel Dispute Arbitration Commission for arbitration, demanding that the company pay him compensation for illegally terminating the labor contract, the year-end bonus in 2020, the salary difference in November 2019, and the sales bonus in January 2021.
The arbitral award is as follows: the company shall pay Xiao Du 100804 yuan in compensation for illegally terminating the labor contract, as well as the difference in wages in November 2019 of 3,540.23 yuan.
The company was not satisfied with this and sued the court.
The court ruled that the company's termination of the contract was illegal and should pay compensation
First instance
The court held that although Xiao Du signed the Code of Ethics, Confidentiality Obligation and Conflict of Interest Resolution Agreement, the change in his marital relationship was divorce, that is, the number of stakeholders with whom he might have a special relationship did not increase but decreased, and his divorced status would not give rise to a conflict of interest related to his position.
Therefore, it was obviously improper for the company to terminate the labor contract with Xiao Du on the grounds that he had not declared his marital changes. The company's request to pay compensation for Xiao Du's illegal termination of the labor contract lacked basis. Xiao Du's request for the company to perform in accordance with the arbitral award and pay him compensation for illegally terminating the labor contract has a basis, and this court supports it.
With regard to the company's request to disagree with the payment of Xiao Du's salary difference in November 2019, the court held that the employer has the right to employ employees and can punish employees who violate discipline, which is also a common means for employers to maintain the normal production and operation of the enterprise. Although the company's punishment involved economic deductions, it was specific and phased, and did not involve the termination or modification of the labor contract, and the financial deductions did not affect Xiao Du's basic life. Therefore, the above-mentioned sanctions fall within the scope of the employer's management of the employee, and do not fall within the scope of labor dispute cases.
After trial, the court of first instance made a judgment: ↓↓↓ First, the company needs to pay Xiao Du 100804 yuan in compensation for illegally terminating the labor contract, and second, the company does not need to pay Xiao Du's salary difference of 3,540.23 yuan in November 2019.
Dissatisfied, the company appealed.
Second instance
The court held that although the company required Xiao Du to immediately take the initiative to report the changes in the family relationship and investment relationship, Xiao Du was divorced, which objectively did not increase the legal risk and moral hazard of Xiao Du when he performed his obligations under the labor contract.
The company also did not provide evidence to prove that the above-mentioned changes in Xiao Du's circumstances had aggravated the company's business risks or obligations under the labor contract.
Therefore, the company's termination was illegal, and Xiao Du should be paid compensation for the illegal termination of the labor contract. In summary, the first-instance judgment found that the facts were clear and the law was correctly applied, and it should be upheld. The judgment is as follows: the appeal is dismissed and the original judgment is affirmed.
This judgment is final.
Source: Shanghai Federation of Trade Unions "Shen Gong She", China Judgment Network, etc
Editor丨Wang Qiutong