The labor contract may be terminated by the consensus of the parties. However, if the employee fails to sign the written document in time after reaching a consensus and does not go through the resignation procedures, can the employee regret it?
Zhang worked as an executive in a start-up company founded by a friend, and because the two had a good relationship, their daily management communication was more casual. Less than a year after Mr. Zhang joined the company, the two parties agreed to terminate the labor contract through oral consultation. Zhang said that he was in a hurry to go to other places to handle personal affairs, prepare for his follow-up business, and agreed to return to the company to cooperate with the resignation procedures after he was busy. Unexpectedly, half a month later, Zhang returned and insisted on continuing to perform the labor contract, but his words and deeds were extreme after being refused. Later, the company re-issued a written "Notice of Contract Termination", but Zhang was dissatisfied and believed that the company was illegally terminated. The People's Court of Dongcheng District, Beijing Municipality ruled that the termination of the labor contract on the day of the negotiation between the two parties, whether the resignation and handover were completed was not a prerequisite for determining whether the labor relationship was terminated, and the company did not need to pay Zhang's wages and compensation for the illegal termination of the labor contract during the subsequent period of non-work.
If the employee agrees to resign but fails to go through the formalities, the employee regrets it
In October 2021, Zhang joined a startup founded by a friend as an executive. At the end of June 2022, due to personal development, Zhang decided to resign after consultation with the company's boss and agreed to cooperate with the resignation handover in the follow-up, and then left the company. Since June 29, 2022, the company has communicated with Zhang on matters such as resignation and handover many times, and Zhang replied that he was in the field and would handle the handover after returning to Beijing.
However, on July 18, the company communicated with Zhang again about the resignation and handover, but Zhang said that he did not leave and asked to return to the company to continue working, but the company refused. Subsequently, the company issued a written Notice of Contract Termination to Zhang. Zhang was dissatisfied with the company's decision and filed a labor arbitration, and the arbitration ruled that the company should pay the wages for the above-mentioned period of non-work and compensation for the illegal termination of the labor contract.
A company asserted that Zhang had actually resigned on June 29 of that year, and clearly said to the boss that he would cooperate with the resignation handover procedures in the future, and left the company after saying goodbye to his colleagues on the same day, but Zhang suddenly repented on July 18 and asked that the period of time be counted as a leave of absence on the grounds that the senior executives did not need to clock in. After the company refused, Zhang made a series of actions that interfered with the company's operations. Out of desperation, the company had to leave Beijing on July 27 with "leaving the post without fulfilling the approval of the leave request, and did not perform any work during the period, and the aforesaid absenteeism continues to this day...... constitutes a serious violation of the company's rules and regulations", and formally issued a written "Notice of Contract Termination". Zhang left the company without any leave record, which did not conform to the normal process, and the company's termination of the labor contract was reasonable and legal.
Zhang argued that he was a senior executive of a company who worked irregular hours and did not need to punch in or record attendance, and that the plaintiff's boss had also informed him that he did not need to report for leave. He never voluntarily asked to leave his job, and from June 29 to July 27, he communicated with his boss every week, during which he was on marriage leave and annual leave, rather than absenteeism. The resignation of the employee shall be subject to the official documents signed by both the employee and the company through consultation, and the company shall be terminated illegally.
The termination of the labor contract is not premised on the completion of the resignation handover
The court held that the focus of the dispute in this case was the time and nature of the termination of the labor contract between the parties. Article 36 of the Labor Contract Law of the People's Republic of China stipulates that "an employment contract may be terminated upon consultation between the parties to the labor contract". Article 137 of the Civil Code of the People's Republic of China stipulates that "an expression of intent made in the form of dialogue shall take effect when the counterpart knows its contents." Expressions of intent made in a non-dialogue manner take effect when they reach the counterpart. ”
According to the WeChat chat record with Zhang submitted by the company, on June 29, 2022, the two parties began to formally communicate on the follow-up resignation and handover, and the company clearly stated that "today we will start discussing the resignation and handover", and asked Zhang to stay in Beijing to deal with the resignation and handover. From that date until Zhang repented of his resignation on July 18, in the WeChat chat records of the two parties, the company repeatedly sent Zhang "resignation" and "resignation procedures" and other related content, and Zhang also clearly expressed his willingness to cooperate with the resignation handover many times, replying "okay" and "cooperating" and other content.
Based on the evidence in the case, the court held that between June 29 and July 18, Zhang did not go to work and did not explicitly ask for leave, nor even determined the specific time for returning to the unit, which was obviously inconsistent with the behavior of a normal in-service worker. Zhang's above-mentioned series of actual behaviors further confirmed the fact that the two parties had agreed to terminate the labor contract through consultation on June 29, 2022. According to the normal sequence of events, there should be an agreement to terminate the labor contract before entering the communication of specific work handover after resignation. After the termination of the labor contract, the employee has the obligation to cooperate with the handover of resignation, but whether the handover is completed is not a prerequisite for determining whether the employment relationship is terminated. Therefore, the court found that the labor contract between the two parties had actually been formally terminated by consensus on June 29, 2022, and the Notice of Contract Termination issued on July 27 could not overturn the above findings, so the court ruled that the company did not need to pay the wages for the subsequent period of non-work and the compensation for the illegal termination of the labor contract.
However, as to the reason for the termination of the labor contract, since the company failed to provide evidence to prove whether Zhang voluntarily resigned or Zhang agreed after the company proposed to terminate the contract, the court presumed that the employer proposed to terminate the labor contract to the employee and agreed to terminate the labor contract through consultation, and ordered the company to pay Zhang severance for the termination of the labor contract in accordance with Article 46 of the Labor Contract Law of the People's Republic of China.
Zhang was dissatisfied with the first-instance judgment and appealed, and the original judgment was upheld in the second-instance trial; Zhang was dissatisfied with the second-instance judgment and applied for a retrial, which was rejected. The case is now in force.
Employees should be cautious when leaving their jobs, and the company needs to standardize management
Feng Xiaoguang, the judge hearing the case, analyzed that whether and when the labor contract was terminated was a matter of fact and was not subject to the subsequent will of either party. In this case, the evidence on record and Zhang's subsequent actual behavior proved that Zhang and the company had terminated the labor contract on June 29, and the termination of the contract did not violate relevant laws and regulations, and this fact would not be changed by Zhang's repentance. In addition, Zhang's series of words and deeds were inconsistent, and his statements at the trial were obviously inconsistent with objective facts, which not only undermined the basic trust between people, but also disrupted the company's daily management and operation, which was not conducive to the construction of harmonious labor relations.
Feng Xiaoguang reminded workers that whether they voluntarily resign or negotiate the termination of their labor contracts, they should maintain a cautious attitude towards resignation, rationally weigh the pros and cons, and avoid suffering losses or causing unnecessary trouble.
If an employee voluntarily requests to terminate the labor contract, he/she shall notify the employer in writing 30 days in advance, and there is no need for the employer to make an indication of whether or not to agree to the labor contract. In this case, the employee cannot retract the resignation unless the employee's expression of intent to withdraw his resignation precedes or reaches the employer at the same time, or the employer agrees to the employee's application for withdrawing his resignation.
If the employee and the employer negotiate to terminate the labor contract, after reaching a consensus through consultation, if the employee expresses his or her intention to terminate the labor contract through face-to-face interview, telephone, video, text message, WeChat, etc., the employer shall take effect when the employer knows the contents; If the separation agreement is signed in writing, it will take effect after it is signed by both parties. In this case, the separation agreement will only be invalid if the mandatory provisions of laws and administrative regulations are violated, there is fraud, coercion or taking advantage of the danger of others, and the employee has a major misunderstanding or the agreement is obviously unfair.
At the same time, the judge also reminded an enterprise such as a certain company that it is necessary to effectively strengthen the attendance and leave system and resignation management for employees, especially executives, enhance legal awareness, improve the standardized signing of legal documents at each process node, and effectively prevent similar disputes from the source.
The picture comes from the Internet
Contributed by: Dongcheng Courthouse
Editor: Yang Chenhui Guo Jin
Review: Zhang Zhongtao