1. Basic case
On March 15, 2015, Song joined a rubber and plastic company and worked as an operator. On April 15 of the same year, the rubber and plastic company adjusted Song to the packaging post through the internal examination and approval process. Song did not agree to the transfer and did not go to the new post. On April 30 and May 11, 2023, a rubber and plastic company sent a notice to Song twice, requiring him to go to work or go through other formalities on the day of receiving the notice. On May 18, 2023, a rubber and plastic company sent a notice to Song, saying that Song still did not return to work after two reminders, resulting in long-term absenteeism, giving Song dismissal and termination of the labor contract. Later, Song applied for labor arbitration and asked a rubber and plastic company to pay compensation for the illegal termination of the labor contract. If the arbitration award finds that a rubber and plastic company constitutes an illegal termination of the labor contract, compensation shall be paid. A rubber and plastic company refused to accept the arbitration award and filed a lawsuit.
2. Referee result
After hearing the case, the people's court held that the first paragraph of Article 35 of the Labor contract Law of the people's Republic of China stipulates that "if the employer and the laborer agree through consultation, they may change the contents of the labor contract. The modification of the labor contract shall be in written form. " In this case, a rubber and plastic company only adjusted Song's position through the internal examination and approval process, and did not provide evidence to prove that Song was not suitable for the original post or the necessity, reason and basis for adjusting the post, and Song did not agree to work in the new post, and the two sides did not agree. Therefore, a rubber and plastic company to adjust jobs for Song does not comply with the above-mentioned legal provisions. After Song refused to work in a new post, although a rubber and plastic company stated in the notice that the labor contract was terminated in accordance with the provisions on the Management of attendance and leave and the provisions on rewards and punishments for employees, however, there was no proof to prove that the formulation of the rules and regulations went through democratic procedures and was publicized, and there was no proof that the labor contract was terminated and informed the trade union in advance. To sum up, the termination of the labor contract between a rubber and plastic company and Song is illegal. The court ordered a rubber and plastic company to pay Song compensation.
3. Typical significance
It is an important part of exercising employment autonomy for employers to make appropriate adjustments to workers' positions and workplaces according to the needs of their own production and operation, but the exercise of employment autonomy must be within the framework of laws and regulations and shall not abuse rights. According to the law, the employer should consult with the labourers and change the contents of the labor contract, including the job, in written form. If the two parties do not reach an agreement through consultation, the employer shall not adjust the worker's position at will. At the same time, employers should also follow the principle of necessity and rationality in adjusting the jobs of workers. In this case, the employer did not consult with the workers, but only decided to adjust the workers' jobs through the internal examination and approval process, and the workers disagreed to terminate the labor contract on the grounds of violating the rules and regulations, which is against the provisions of the law. The people's court ruled that the employing unit should pay compensation for the illegal termination of the labor contract, thus protecting the legitimate rights and interests of the workers.
[Shandong Binzhou Zhanhua District people's Court (2023) Lu 1603 Civil judgment No. 2380 at the beginning of the Republic of China, judge: sun Minchao, clerk: Wu Yanan. Binzhou Intermediate people's Court (2023) Lu 16 Civil judgment No. 3154, collegial bench judges: Zhang Xiufeng, Tang Shunjiang, Wang Lin, judge assistant: Liu Dexia, clerk: Cui Shengnan]
