1. Employee lied and concealed the itinerary: plaintiff Xi and defendant Nanjing Jiajie Human Resources Co., Ltd., defendant Nanjing University of Science and Technology and defendant Nanjing Huaqin Construction and Installation Company.
Xi signed a labor contract with Jiajie Company, and was later sent by Jiajie Company to the later service center of Nanjing University of Science and Technology to do hydraulic work. As stipulated in the labor contract, if Party B seriously violates the rules and regulations formulated by the employer according to law and is returned by the actual employer, Party A has the right to terminate the labor contract with Party B according to law.
Xi left Ning the day before the start of school, and did not inform the unit after returning to Ning, nor did he conduct home isolation as required; After school started, I traveled back and forth between Nanjing and Wuxi. Did not file an application, did not inform the unit afterwards, and did not isolate. Both of them seriously violated the epidemic prevention measures of Nanjing University of Science and Technology, and Nanjing University of Science and Technology dismissed them. Jiajie Company terminated the labor relationship accordingly. Xi refused to accept the termination decision and filed a labor arbitration. Later, he lost the case and filed a lawsuit.
The court held that workers should abide by the employer's rules and regulations. The epidemic situation in COVID-19 is a public health emergency. The State, Jiangsu Province and Nanjing Municipality have formulated a series of documents and measures to prevent and control the spread of COVID-19 epidemic. Nanjing University of Science and Technology has formulated the relevant school system according to the relevant regulations of the state, province and city. These systems and measures have not put forward harsh requirements for workers, and their contents are legal and reasonable. These regulations have also been published to all faculty members, including Xi, and all faculty members should abide by the relevant school system. However, in the case of repeated orders from the school, Xi failed to declare and isolate after returning to Ning for the first time, and failed to declare and isolate after leaving Ning and returning to Ning for the second time, which seriously violated the rules and regulations of the employer. In addition, under the COVID-19 epidemic, everyone is required to take care of themselves and be "self-disciplined", which is not only to protect their own lives and health, but also to be responsible for the lives and health of others.
2. Failure to perform duties related to "epidemic prevention" according to law: civil case of second instance of labor contract dispute between Zhu Fu and Shanghai Sheng Rui Security Service Co., Ltd.
Zhu An is an employee of a security company. During the epidemic, he was assigned to the resident hospital as a security guard, but he was repeatedly complained by doctors and nurses in the resident hospital. He thought that the work of taking his temperature was just a formality, and he was dismissed because of repeated violations of discipline and repeated education. Zhu An initiated labor dispute arbitration, but the arbitration did not support its request. Zhu An refused to accept the lawsuit, so the court of first instance refused to support it.
After Zhu An appealed, the court of second instance held that Zhu An was appointed by the company to do security work in a hospital with a large turnover of personnel and a heavy task of epidemic prevention and control. He should have performed his security duties in strict accordance with the requirements of the employer and the resident hospital. He should have obeyed the overall situation, obeyed the work command and actively prevented and controlled the epidemic.
However, Zhu An not only wandered around the hospital office in violation of the dress code during working hours, was late for work, and charged illegally, but also slept in the pre-inspection triage post during working hours, and did not complete the standing guard work and disobeyed the work arrangement. In addition, Zhu An thinks that the doorman on guard is only "taking a form" when taking the temperature of people who come to the hospital, and that the instructions and requirements issued by the hospital cannot be carried out, which is improper in both subjective understanding and objective behavior. According to the regulations, if the laborer seriously violates labor discipline or the rules and regulations of the employer, the employer may terminate the labor contract.
Third, the lawyer's point of view
From the above two typical cases, it can be seen that in judicial practice, the identification of employees violating epidemic prevention regulations and the dismissal of employers tend to be legal and reasonable.
At the same time, there are two points that cannot be ignored:
First, employers should fire employees, not just because employees fail to comply with epidemic prevention requirements. There are thousands of reasons for the company to dismiss employees, but they are all the same. No matter what reason the company dismisses its employees, it must meet one of the six situations stipulated in Article 39 of the Labor Contract Law: (1) It is proved that it does not meet the employment conditions during the probation period; (two) a serious violation of the rules and regulations of the employer; (three) serious dereliction of duty, corruption, causing great damage to the employer; (4) The laborer establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the unit, or the employer refuses to correct it; (5) Causing the other party to conclude or change a labor contract against its true meaning by means of fraud, coercion or taking advantage of the danger of others, thus making the labor contract invalid; (6) Being investigated for criminal responsibility according to law.
Under epidemic prevention, most employers dismiss employees on the grounds of "serious violation of employer's rules and regulations" and "serious dereliction of duty and graft, causing great damage to employers" in Item 2 of Article 39 of the Labor Contract Law. Therefore, we must make great efforts in the formulation subject, content, democratic procedure and openness of rules and regulations. In the two cases shown in this paper, the company has perfect, legal and reasonable rules and regulations, so it won the case smoothly.
Second, if the employer wants to dismiss employees, the procedures must comply with the law. In addition to the written notice of dismissal, the procedural issues of notifying the trade union should not be missed.
No matter what reason the employer dismisses employees, it is legal and effective only if it conforms to the legal provisions in entity and procedure. Otherwise, the employer will face the risk of illegally dissolving the labor contract and paying compensation to the workers.
For more legal advice, please contact lawyer Wang Ling of Suzhou (18896994 107).