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
Employers make appropriate adjustments to workers 'jobs, work locations, etc. according to their own production and operation needs, which is an important part of exercising employment autonomy. However, employers must exercise employment autonomy within the framework of laws and regulations and must not abuse their rights. According to the law, the employer should change the content of the labor contract, including the job position, through consultation with the employee and in writing. If both parties fail to reach an agreement through consultation, the employer shall not adjust the worker's job position at will. At the same time, employers should also follow the principles of necessity and rationality in adjusting workers 'jobs. In this case, the employer did not negotiate with the worker and only decided to adjust the worker's job position through the internal approval process. If the worker disagreed, the labor contract was terminated on the grounds of violating rules and regulations, which violated the law. The People's Court ruled that the employer paid compensation to the worker for illegally terminating the labor contract, which protected the legitimate rights and interests of the worker. [Zhanhua District People's Court of Binzhou, Shandong Province (2023) Lu 1603 Minchu No. 2380 Civil Judgment, Judge: Sun Minchao, Clerk: Wu Yanan. Civil Judgment No. 3154 of the Intermediate People's Court of Binzhou (2023) Lu 16 Minzhong, Judges of the Collegial Bench: Zhang Xiufeng, Tang Shunjiang, Wang Lin, Judge Assistant: Liu Dexia, Clerk: Cui Shengnan]
