[Summary of the trial]
With regard to the calculation scope of the average salary for the 12 months prior to resignation, the court held that severance should be given to the employee after the employer dissolves or terminates the employment relationship with the employee to make up for the employee's losses or based on the social responsibility assumed by the employer, so the severance should be calculated based on the employee's normal working hours and wages, so the composition of wages should not include overtime pay, nor should it include the medical treatment period.
【Brief Facts of the Case】
On January 1, 2008, Wang signed a labor dispatch agreement with a dispatch company that was not involved in the case, and was dispatched to work in a company in Tianjin, and the post was an operation postOn January 1, 2010, Wang signed a separate labor dispatch contract with dispatch company B, and Wang continued to be dispatched to work in a company in Tianjin. From July 1, 2010, Wang began to sign a labor contract with a company in Tianjin, and the last labor contract term was an indefinite labor contract starting from July 1, 2018, and the contract stipulated that Wang's position was an operation post, and the salary standard was 3,610 yuan per month, and the standard working hour system was implemented.
On August 1, 2011, a company in Tianjin formulated the "Measures for the Administration of Leave", Article 7.3 of which stipulates that employees who leave their posts without going through the leave procedures or who fail to go to work on time after the expiration of the leave and do not renew the leave will be treated as absenteeism, and the company will terminate the labor contract with them if the cumulative absenteeism reaches three days. Mr. Wang signed and confirmed the personnel system receipt record of the "Measures for the Management of Leave". On January 1, 2012, a company in Tianjin formulated the "Measures for the Management of Rewards and Punishments", and Article 7.3.1 of the Measures also stipulates that if the employee is absent from work or passively slacks work for more than three working days, he shall be punished for terminating the labor contract. On July 11, 2016, Wang signed and confirmed the notice of the company's name change and the original rules and regulations that continued to be valid.
From August 22, 2018, Wang began to take sick leave due to synovitis in his left knee, and until May 20, 2019, a company in Tianjin approved Wang's sick leave application. On May 21, 2019, when Wang mailed the certificate of construction and leave to a company in Tianjin again, a company in Tianjin refused to accept the return. The email tracking record shows that the express mail began to be delivered to a company in Tianjin on May 22, 2019, but was not returned to Wang until May 30, 2019. At the same time, on May 21, 2019, a company in Tianjin also mailed a notice to Wang, informing Wang that his sick leave was from August 22, 2018 to May 21, 2019, and that the medical treatment period had expired on May 21, 2019, and required Wang to come to the company on time on May 22, 2019 to cancel the leave, otherwise the company would be regarded as a serious violation of the company's system and labor discipline, and be treated as absenteeism without reason. The address and telephone number of the recipient of the express mail are the same as the address and telephone number of Wang's mailing of the certificate of construction and rest to a company in Tianjin, but the tracking record of the mail shows that it was received by others on May 22, 2019 (Cainiao Station). On May 28, 2019, a company in Tianjin mailed a notice to Wang again, informing Wang that his sick leave had ended on May 21, 2019. The company sent a notice to him on May 21, 2019, but from May 22, 2019 to May 28, 2016, Wang still did not return to work, and due to serious violations of Article 7.3.1 of the company's "Disciplinary Management Measures", Wang was required to go through the relevant procedures with this notice on May 31, 2019. The letter was signed by a company in Tianjin, and the words "must confirm that I have signed" were also specially indicated. However, the email tracking record still shows that it was received by someone else on May 29, 2019 (Cainiao Station).
After the labor union of a company in Tianjin signed and agreed to the punishment decision against Wang, a company in Tianjin mailed a resignation notice to Wang on June 11, 2019, and the labor contract signed by the two parties will be terminated on June 13, 2019 on the grounds that Wang has not returned to work from May 22, 2009 to June 11, 2009, and has seriously violated the company's "Reward and Punishment Management Measures" 7.3.1 for continuous absenteeism or passive sabotage for more than three working days. A company in Tianjin requested Wang to go through the relevant handover procedures with this notice to the personnel department on June 14, 2019. The email tracking record shows that it was collected on June 12, 2019 (Hive Nest).
Wang's social security contributions started in January 2008, and Wang's average salary in the 12 months prior to his resignation was 6,563.84 yuan. According to the wage ledger provided by a company in Tianjin and the authenticity of which Wang did not dispute, the total amount of wages payable from September 2017 to August 2018 was RMB 50,270.17 after deducting overtime wages and heatstroke prevention and cooling and heating subsidies, and the average salary for 12 months during the normal working period before leaving the company was RMB 4,189.2.
Mr. Wang did not agree with the dismissal decision made by a company in Tianjin, and claimed that the company should pay compensation, which should be calculated with reference to the normal monthly wage standard including overtime pay. However, a company in Tianjin did not agree with this, arguing that there was no need to pay compensation. Even if compensation or compensation is required, it should be calculated on the basis of the average salary for the 12 months preceding the separation from service, and the average salary should include the medical period salary.
【Judgment Result】
The Tianjin Economic and Technological Development Area Labor and Personnel Dispute Arbitration Commission ruled that the compensation for illegal termination of the labor contract should be calculated according to the average salary (including the salary of the medical period) in the previous 12 months, totaling 41,000 yuan.
In the (2019) Jin 0116 Min Chu No. 84916 Civil Judgment, the Tianjin Binhai New Area People's Court excluded the wages and overtime pay during the medical treatment period, and the compensation for the illegal termination of the labor contract was 75,405.6 yuan based on the wages of normal working hours.
In the (2020) Jin 03 Min Zhong No. 1398 Civil Judgment, the Tianjin No. 3 Intermediate People's Court upheld the original trial court's determination of the calculation standard for the average monthly wage.
【Case Tips】
Remind the employer whether the average monthly salary should include overtime pay when the employment contract is terminated at the expiration of the medical treatment period. In judicial practice, there is no unified conclusion on this issue. For employers, since the conclusion is not stable and uniform, it is recommended that the employment contract be terminated through consensus as far as possible when the employee's medical treatment period expires, and a termination agreement should be signed to reduce the risk.
Remind the employee that it is the legitimate rights and interests of the employee to submit the sick leave information that meets the leave application process during the medical treatment period. If, after the expiration of the medical treatment period, the employee is still unable to return to his original job or work in another job arranged by the employer, the employer has the right to terminate the employment relationship. However, in this case, the termination of the employment relationship requires the payment of severance payment. If the employee's salary during the medical treatment period is much lower than what they were paid during normal work, the employee can try to claim compensation at the normal wage rate. Of course, the specific compensation standard is still subject to the final determination of the arbitration institution or court in the region.
Disclaimer: The content of this article is for reference only and is not intended as legal advice for specific cases.