Commuting to and from work on time is the most basic professional ethics of workers, and it is also the "rule" that workers should abide by. If an employee violates the rules and regulations of the employer due to being late, the employer has the right to deal with it, but is it legal for the employer to terminate the labor contract on the grounds that the employee has been late for many times?
Programmer Wang works in a computer technology company and works more than 8 hours a day. The company dismissed Wang on the grounds that he had been late for as many as 98 times in less than a year, without explicitly requiring work hours and without prompting, informing or punishing Wang's "lateness". In the end, the Beijing Dongcheng Court found that the company did not clearly inform the attendance system and failed to fulfill its management responsibilities, which was an illegal termination, and Wang should be paid 166512 yuan in compensation for illegal termination of the labor contract and 15,179.3 yuan in unused annual leave.
No prompt, no penalty
The company terminated the contract on the grounds that the employee was 98 times late
Wang, who is in his 40s, is a senior programmer who joined a computer technology company in May 2021 as the technical director of the team, and the two parties signed a 3-year fixed-term labor contract, stipulating that Wang's monthly salary is more than 60,000 yuan. During work, Wang clocked in and out every day, and the working hours exceeded 8 hours. At the end of 2022, the company negotiated with Wang to terminate the contract, and when the negotiation between the two parties on the severance compensation failed, Wang suddenly received the "Notice of Termination of Labor Contract" sent by the company, and terminated the labor relationship with Wang without compensation on the grounds that Wang was late 98 times from January to November 2022 and violated the company's attendance discipline and was a serious violation of discipline.
Wang was shocked and filed a labor arbitration, demanding that the company pay compensation for the illegal termination of the labor contract, unused annual leave wages and overtime pay, and the arbitration supported Wang's claim in addition to overtime pay. Later, the company was dissatisfied with the arbitration award and sued the court.
A computer technology company asserted that the company's "Attendance Management Measures" stipulated that the working hours were 8:30-17:30, and if the company was late for more than 60 times in a year, the year-end bonus or labor contract would be cancelled, while the company's actual working hours were 9:00-18:00. The company has no obligation or energy to inform employees when they violate discipline, but it does not mean that the company has waived the right to punish employees, and the company's failure to deal with it for a while out of feelings for employees does not mean that it accepts or acquiesces in the employee's disciplinary behavior, or changes the provisions of the labor contract. Wang's repeated lateness has seriously violated the company's rules and regulations, and is in line with the "Attendance Management Measures" and the labor contract that the company has the right to unilaterally terminate the labor contract.
Wang argued that he clocked in and out every day since he joined the company, and the labor contract signed by the two parties stipulated the implementation of a standard working hour system, but did not stipulate a specific commuting time. At the same time, Wang pointed out that the company had never delivered him the "Attendance Management Measures", nor did it explicitly require a fixed commuting time, and his actual monthly working hours exceeded the company's stated 9 to 6 hours. The company has never reminded or informed him of his "tardiness", let alone deducted his wages or bonuses on the grounds of being late and absent from work. In addition, as the leader of the team, according to Wang's attendance and payroll records of several other employees in his team, the clock-in and clock-out times of others were similar to his, and they had not been fined or terminated for being late.
The company failed to provide evidence to prove that it had fulfilled its management responsibilities
Cancellation of the Dependency Law
After trial, the Dongcheng Court held that the focus of the dispute in this case was whether Wang had seriously violated the company's rules and regulations. The legitimate rights and interests of workers are protected by law. Article 44 of the Interpretation (I) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases stipulates that the employer shall bear the burden of proof in the event of a labor dispute arising from a decision made by the employer to dismiss, dismiss, dismiss, terminate the labor contract, reduce the labor remuneration, calculate the employee's working years, etc.
In this case, on the one hand, the company did not provide evidence to prove that its work system of working at 9 a.m. had been expressly served or informed to Wang, and after Wang clocked in later than 9 a.m. or failed to clock in on several occasions, the company, as an employer with management responsibility, had never fulfilled its obligation to prompt or inform or deduct Wang's wages as a result. On the other hand, from the actual situation of the attendance record, Wang's daily working hours and attendance status are obviously different from the implementation of the standard working hours system, and the company has never raised any objections in the performance of the labor contract, and Wang's actual daily attendance is more than 8 hours. Therefore, when the two parties negotiated the resignation plan, the company terminated the employment relationship with Wang on the grounds that Wang was late for 98 times, which had insufficient factual and legal basis and should constitute an illegal termination of the employment relationship.
In the end, the Dongcheng Court ruled that the company should pay Wang 166512 yuan in compensation for illegally terminating the labor contract and 15,179.3 yuan in unused annual leave. The company appealed against the first-instance judgment, and the original judgment was upheld in the second-instance trial.
Judge's tip
The company shall clearly inform and actually implement the rules and regulations
The formulation of rules and regulations is the main way for employers to exercise employment autonomy and management rights, and if an employee seriously violates the rules and regulations of the employer, the employer may terminate the labor contract. However, where there are rights, there must be constraints, and the rules and regulations of the employer cannot be arbitrarily formulated, let alone infringe upon the legitimate rights and interests of the workers. The legal and effective satisfaction of the rules and regulations: formulated through democratic procedures, without violating national laws, administrative regulations and policy provisions, has been publicized to the workers three requirements.
In this case, the company stated that it actually implemented the 9 a.m. working time, but it lacked a clear institutional basis, and the system documents submitted for the working hours did not prove that it had actually been informed or served on Wang. During Wang's employment, when he repeatedly clocked in later than 9 a.m., he was never reminded or punished, and it was impossible to prove that the company actually existed and implemented the work system of going to work at 9 a.m., and from Wang's clock-in records, Wang's daily attendance time exceeded 8 hours, so the company had insufficient basis for terminating the labor relationship on this ground.
The employer shall exercise the right of self-management in a lawful and reasonable manner, and may flexibly choose the method of publicity after formulating the rules and regulations, and clearly inform the employee of the content of the rules and regulations through written or electronic documents, but shall pay attention to keeping the relevant records confirmed by the employee, or when signing the employment contract with the employee, the rules and regulations shall be expressly signed as an annex to the contract, especially in the main text of the employment contract, such as the wage standard, work content, working hours, etc. In the process of performing the labor contract, the employee's violations of rules and disciplines should also be prompted, informed, or dealt with accordingly in a timely manner, so that the company's rules and regulations can be implemented and play a role. In addition, employees should strictly abide by the rules and regulations, obey the work discipline of the employer, and avoid putting themselves in a disadvantageous position due to violating the management regulations of the employer.
[Source: Jingfa Network Affairs]
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