Under the normal performance of the labor contract, in addition to wages, the amount paid by the employer to the employee also includes overtime wages, wages for the unused annual leave, wages for the period of suspension of work, commissions, performance wages and year-end bonuses. However, there are certain controversies in practice regarding commissions, performance-based wages and year-end bonuses, especially the "non-payment after resignation" clause stipulated in the contract, that is, the employment contract stipulates that before the commission, performance-based salary and year-end bonus are paid, the employer will not pay the unpaid commission, performance-based salary or year-end bonus if the employee resigns for any reason. There are differing views on the application of this agreement.
One view is that Article 3 of the Interim Provisions on Payment of Wages stipulates that the wages mentioned in these Provisions refer to the wages and remuneration paid by the employer to the employee in various forms in accordance with the provisions of the labor contract. Article 50 of the Labor Law stipulates that wages shall be paid to the worker himself in the form of money on a monthly basis. Wages shall not be deducted or unjustifiably delayed. Therefore, the above-mentioned commission, performance-based salary and year-end bonus all belong to the scope of the employee's wages, and the above-mentioned "non-payment" clause is actually a means for the employer to deduct wages, which should be an invalid agreement, and the employer's defense that it is not required to pay the above-mentioned amount should not be supported.
Another view is that commissions, performance-based wages and year-end bonuses are additional remunerations paid by the employer to the employee in addition to the salary, and the above-mentioned remuneration has gone beyond the scope of the standard protection of the employee, and the parties should be allowed to negotiate and agree on it themselves. Therefore, the above-mentioned agreement does not violate the mandatory provisions of laws and administrative regulations, and is a valid agreement. In terms of specific application, it should be treated differently according to the different reasons for the employee's resignation: if the employer illegally terminates the labor contract, and then refuses to pay on this ground, it should be deemed that the employer has improperly blocked the payment conditions in order to evade the wage payment obligation, and should not be supported; In the event that the employee voluntarily resigns or the employer legally terminates the labor contract, the employer's defense is established in accordance with the above provisions, and the employee's request for payment of the above-mentioned commission, performance salary and year-end bonus shall not be supported.
In the author's opinion, there is some truth in the above views, but none of them is very appropriate. For the "non-payment of resignation" clause, the nature of the above-mentioned commission, performance salary and year-end bonus shall be determined according to the specific provisions of the labor contract, and shall be handled differently according to the different natures. The test score is as follows:
1
On the issue of commissions
In order to motivate employees to work more and get more, there are many cases where employers use the method of "basic salary + commission" to agree on wages, among which the basic salary is usually agreed to be the minimum wage standard, and the actual amount of wages that employees can receive mainly depends on the performance commission. In addition, the employer and the employee agree on a higher wage, but at the same time, it is agreed that after the employee's performance exceeds a certain amount, a certain commission will be given to the excess amount, which is also the same incentive purpose.
The nature of the above commission is wages. The employer has a statutory obligation to pay wages, except for withholding and paying individual income tax, social insurance and other parts of the personal responsibility of the individual, the employer shall not arbitrarily withhold the wages, and the "resignation without payment" clause is essentially a disguised wage deduction agreement, which should be deemed invalid according to the provisions of Article 26, Paragraph 1 of the Labor Contract Law because "the employer exempts itself from statutory responsibilities and excludes the rights of employees".
Therefore, for the commission, regardless of the reason for the employee's resignation, if the amount of the commission has been determined at the time of resignation, and only the payment time has not expired, the employee has the right to request the employer to pay the commission after the performance time expires. If the amount of commission has not yet been determined at the time of resignation, but the employee has completed part of the work and the business has actually been completed after the employee leaves the company, the employer shall pay the commission to the employee according to the proportion of the employee's labor in the completion of the business in accordance with the calculation method of commission in the labor contract.
2
On the issue of performance-based pay
The issue of performance-based pay is more complex than the issue of commission, and can be divided into two types of situations according to the different provisions of the employment contract:
In the first category, although the employment contract stipulates performance-based wages, it does not stipulate how to conduct performance appraisal, and there is no relevant provision on performance appraisal in the rules and regulations of the employer. In this case, the so-called performance pay is essentially salary, which can be called "not real performance pay". In this case, the treatment of the "non-payment of resignation" clause in the employment contract should adopt the same line of thinking as the above-mentioned commission.
In the second category, the labor contract stipulates the performance salary and the method of performance appraisal, or although there is no agreement in the labor contract, the company's rules and regulations have specific provisions on performance appraisal. In this case, performance-based pay is the real performance-based salary, which can be called "real performance-based salary", which is the remuneration provided by the employer to the employee in addition to the salary according to the employee's performance in order to motivate or evaluate the employee. Since the purpose of performance appraisal is to determine whether the employee is competent and the quality and effectiveness of the work completed, if the employee voluntarily resigns or is legally terminated by the employer before the performance appraisal, the responsibility for not being able to participate in the performance appraisal lies with the employee, and because the performance appraisal cannot be carried out, it is impossible to determine whether the employee can receive performance pay or how much performance salary he can get, so according to the agreement of "resignation without payment", the employee has no right to demand the employer to pay performance wages.
On the contrary, if the employee's resignation is caused by the employer's illegal termination of the labor contract, the employee's inability to participate in the performance appraisal can be attributed to the employer, and the employee should not bear the consequences of disadvantage for the employer's fault.
3
Questions about the year-end bonus
The issue of year-end bonus should also be dealt with in the following different situations:
First of all, if there is no provision for year-end bonus in the labor contract, and there is no provision for year-end bonus in the rules and regulations of the employer, the employer will pay a certain amount of year-end bonus every year, such as in the name of the year-end bonus, in the form of entering the employee's salary card or issuing "opening red envelopes" and "holiday red envelopes" to employees. In this case, the year-end bonus should be a kind of welfare voluntarily paid by the employer to the employee, and whether and how to pay it shall be determined by the employer at its discretion according to its economic benefits, management needs, specific performance of the employee, etc., and shall fall within the scope of the employer's independent business, and the judiciary should not interfere at every turn. Since the employer has no legal obligation or contractual obligation, the employer can of course invoke the "non-payment" clause to refuse to pay the year-end bonus no matter what the reason for the employee's resignation.
Secondly, the employment contract stipulates a fixed amount of the year-end bonus. In this case, there are many forms of year-end bonus, such as agreeing on a year-end bonus of several yuan; Another example is to agree with an employee who adopts the annual salary system to pay a certain amount of wages every month, and the remaining annual salary will be paid as a year-end bonus at the end of the year. This situation is the same as "non-real performance pay", although the name of the year-end bonus is used, it actually belongs to the category of employees' wages, so it should be handled according to the same idea as non-real performance pay.
Finally, the labor contract stipulates the year-end bonus, and the labor contract or rules and regulations stipulate the payment conditions and methods of the year-end bonus. In this case, the year-end bonus is essentially a kind of performance salary, which should be handled in accordance with the above-mentioned rules of "real performance salary".