Unit of choose and employ persons asks turn guard but employee does not agree, right now dismiss employee is legal?
It is very common in reality that the company needs workers to transfer jobs due to business adjustment, but if the workers do not want to transfer jobs, can the employing unit dismiss workers on this grounds?Here we through haoyun law firm agent of real cases, to give you a detailed interpretation.Litigant: A entrusted attorney: Beijing Haoyun Law Firm as A lawyer laborer A joined COMPANY B in March 2013 and signed three labor contracts during the period, the last of which was from July 1, 2019 to June 30, 2022.A is the cost supervisor with an annual salary of 80,000 yuan and A standard working hour system.The notice of termination of labor contract issued by B Company on August 13, 2019 is an illegal termination.According to the Provisions of the Labor Contract Law, B Company’s behavior has constituted the illegal termination of the labor contract, and B Company shall pay A compensation and the wages in arrears.Now A has entrusted haoyun lawyer to appeal to the court because he refuses to accept the ruling of the Labor and personnel Dispute Arbitration Committee.The focus of this case is whether the unilateral termination of the labor contract by B Company is illegal.B company argues that: A seriously violates the company’s rules and regulations and labor contract, and B company is legally discharged from labor.In August 2019, due to actual work requirements, B company transferred A to the position of cost operation supervisor. The post level, salary and benefits remain unchanged, requiring A to report to the cost operation Center before August 7, 2019, and issued A job transfer notice.Subsequently, I sent several reminder letters to A. Failure to arrive at the new post after the deadline was regarded as absenteeism, but A did not report to the cost operation center.According to B company’s attendance management regulations, the company can dismiss those who are absent from work for more than 3 days according to the actual situation.When B company urged A to report for many times, A refused to go and was absent from work for A total of 16 days, which seriously violated the company’s rules and regulations. Therefore, it is not illegal for B Company to terminate the labor contract.A received the Notice of Termination of Labor Contract on August 27, 2019. Therefore, the Court confirmed the labor relationship between the two parties from March 28, 2013 to August 27, 2019.Company B and A agree in the labor contract that company B can transfer its working place or adjust its working position due to the needs of production and operation.But in this case, company B for A job transfer without both sides talks things over consistent, and B company did not evidence to prove that the production and business operation conditions change, A to B company position adjustment of the reason is not approved, so B company to A tuning of the behavior is not in conformity with the law, the citing is not A new jobs report as absenteeism, lift and A Labour relations, the lack of legal basis,Constitute the termination of the violation.Company B was not satisfied with the result of the case and appealed.In the second instance, Company B claimed that A’s claim in the first instance did not include company B’s payment of unpaid annual leave wages and wages from August 8, 2019 to August 27, 2019.However, the court made A judgment on these two cases. The judgment of the court went beyond A’s lawsuit request and was seriously wrong.Request the court to set aside the judgment of first instance.The court of second instance held that after the arbitration commission reviewed the case and made A judgment confirming that during the period of the labor relationship between the two parties, B Company should pay A the salary difference and the unused annual leave salary. After the ruling, B Company did not raise any objection.This is because A filed A lawsuit to the first-instance court against the arbitration result. Therefore, the first-instance court made A judicial judgment on the facts confirmed by both parties in the arbitration stage and the ruling result, which is not justified.B company claimed that this case was judged in excess of the claim and there was a serious error, which was obviously lawless, and the court did not support it.There are legal grounds for B company’s position transfer to A.The court held that, first of all, although B company claimed that its post transfer had A legal basis, it did not provide evidence to prove that the change in B company’s production and operation situation necessitated the job adjustment of A.Second, in A for B company’s duty behavior does not recognise, the two sides did not agree on the hillock, and went on to the original post A clock case, company B make A citing A did not report to the new job as absenteeism, lifting of labor relationship with A, apparent lack of facts and legal basis, the first-instance court accordingly constitute its illegal to remove, and when all things.Finally, the court rejected B company’s appeal and upheld the judgment of first instance.Article 35 of China’s “Labor Contract Law” stipulates that the employer and the laborer can change the content agreed in the labor contract through consultation.That is to say, if laborer does not agree turn guard, unit of choose and employ persons cannot compulsively turn guard or dismiss laborer with this.Additional, if encounter unit of choose and employ persons force him to change post, laborer also does not want to absenteeism easily, lest bring unnecessary trouble to oneself when protecting rights in the future.