2022- 10-02 07:07

Shandong publishing

Included in the collection.

# 29 Labor dispute

# 2 Transferred posts

# 3 Termination of Contract

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Wen | Lawyer Kong Xu

In the course of operation, the employer may adjust its organizational structure for various reasons, and in this process, job transfer will inevitably occur, and employees' original jobs may also be cancelled. When dealing with such things, the two sides usually have the following situations:

_ 1. Employers and employees change their jobs through consultation.

In this case, the labor contract can continue to be performed, and there is generally no dispute.

_ 2. If the employer and the employee cannot reach an agreement on changing their jobs, the employer and the employee shall terminate the labor contract through consultation;

In this case, if both parties reach an agreement to terminate the labor contract, the employer shall pay economic compensation according to the working years (n) of the laborer. If the employee is not notified one month in advance, the employer shall also pay a payment in lieu of notice equivalent to 65,438+0 months' salary.

_ 3. If the employer and the employee negotiate to change their jobs and fail to reach an agreement, the employer unilaterally terminates the labor contract.

In this case, the reason why the employer terminates the labor contract is usually that the objective conditions on which the two parties concluded the labor contract have changed greatly, namely the provisions of Item 3 of Article 40 of the Labor Contract Law:

"The objective conditions on which the labor contract was concluded have changed significantly, which makes the labor contract impossible to perform. If the employer and the employee cannot reach an agreement on changing the contents of the labor contract through consultation, the employer may terminate the labor contract with the employee. "

The third item of Article 26 of the Labor Law also has similar provisions. Because the Labor Contract Law was promulgated late, only the provisions of the Labor Contract Law are listed.

Regarding the explanation of "objective situation", the former Ministry of Labor issued "About"

Several explanations are as follows:

"The' objective circumstances' in this article refers to the relocation, merger, transfer of enterprise assets, etc., and force majeure or other circumstances that make it impossible to perform all or part of the terms of the labor contract. And exclude the objective circumstances listed in Article 27 of this Law (economic layoffs). "

In practice, this situation is the most likely to cause disputes. The laborer insists on fulfilling the original contract, and neither agrees to transfer his post nor terminates the labor contract. After the employer unilaterally terminates the labor contract, the laborer often applies for labor arbitration on the grounds that the employer illegally terminates the labor contract and asks him to pay economic compensation.

According to the above-mentioned laws and regulations, in this case, the employer shall meet the following conditions when exercising the statutory right of dissolution:

1. The termination of the labor contract by the employing unit is in line with the situation that the objective conditions on which the labor contract was performed have changed significantly, resulting in the inability to continue the performance of the labor contract.

According to the explanation given by the former Ministry of Labor, "the objective situation has changed greatly" refers to the unforeseeable and irresistible situation when the labor contract is concluded, which leads to the consequences that part or all of the original labor contract cannot be fulfilled.

Whether the adjustment of organizational structure can be regarded as a major change in the objective situation should focus on the analysis of the reasons for the adjustment of organizational structure.

_ If the adjustment of the organizational structure belongs to the business strategy adopted by the employer, the post of the employee is cancelled. Generally speaking, this situation does not belong to the major change of the objective situation because it belongs to the self-management category of the employer. In addition, if the post cancellation is only for individuals, the department organization has not changed significantly, which is generally not a major change in the objective situation. In this case, the employer can adjust the post of the employee, but the post adjustment should be consistent with the similar nature of the work before and after, which is convenient for the employee to adapt, non-discriminatory, and there should be no obvious gap between the treatment before and after.

For example, in the second-instance labor dispute case between Shanghai Bell Co., Ltd. and Xie Mou (202 1), Guangdong 0 1 Minzhong 30 106, the Guangzhou Intermediate People's Court held that: "Generally speaking, the so-called' objective circumstances' refer to other circumstances that make it impossible to perform all or part of the terms of the labor contract, such as force majeure or enterprise relocation, but The employer adjusts the organizational structure and merges related posts for its own benefit, and assumes legal responsibility for the damage caused to the workers in the process of changing the management mode if it cannot reach an agreement with the workers. Therefore, the court of first instance found that Nokia Bell Company's termination of the labor contract with Xie Mou did not conform to the situation that "the objective conditions on which the labor contract was concluded changed significantly, which made the labor contract impossible to perform", which was an illegal termination, and ordered Nokia Bell Company to pay Xie Mou the economic compensation for the illegal termination of the labor contract, which was not improper. "

In this case, the dispute is essentially a dispute over post adjustment, and the rationality of post adjustment should be emphatically examined to judge whether the contract is justified or not.

For example, in the second trial of the labor contract dispute between Henkel Co., Ltd. (hereinafter referred to as Henkel Company) and Zhao (202 1) Shanghai 0 1 Minzhong 12 10), the Shanghai No.1 Intermediate People's Court held that: "The organizational structure of Henkel Company was adjusted, Zhao Yuan. Zhao refused to work in a new post, and Henkel Company terminated the labor contract according to law on the grounds that Zhao refused to obey the company's reasonable post adjustment and violated the company's rules and regulations. "

_ If the organizational structure adjustment belongs to the business adjustment that the employer is forced to make according to actual reasons, such as epidemic situation, poor management leading to declining performance, operating losses, etc., if the organizational structure adjustment and post streamlining are not carried out at this time, the employer will endanger the overall interests of the enterprise, and the post adjustment after strict procedures can generally be considered as "a major change in the objective situation".

For example, in the second instance of the labor dispute between (appellant) Dalian Wal-Mart Store Co., Ltd. and (appellee) Wang (Liao 02 (2022) Minzhong No.267), the Intermediate People's Court of Dalian, Liaoning Province held that: "According to the facts ascertained in this case, on September 2, 2020, the board of directors of the appellant's headquarters Wal-Mart (China) Investment Co., Ltd. made a resolution because of external factors. The board of directors agreed to gradually implement adjustment and optimization measures for the real estate department and other departments by implementing structural optimization, post revocation, function and business transfer, and streamlining management levels from September 2, 2020. As the appellant's shareholder, Wal-Mart (China) Investment Co., Ltd. adopted a written resolution in accordance with the above-mentioned business organizational structure adjustment and optimization matters and the Articles of Association, and implemented organizational structure adjustment and optimization measures such as structural optimization, post cancellation, function and business transfer, and management level simplification for the real estate development department and other departments and functions involved in the company. The above adjustment and optimization will be gradually implemented from September 25, 2020. Since then, the appellant has adjusted the organizational structure according to the decisions and requirements of the headquarters, and changed the real estate design department, store planning and construction department and real estate operation department into real estate project management department, Sam investment promotion department and Wal-Mart store investment promotion department, resulting in the overall cancellation of the appellee's departments and posts. This situation was not foreseen and controlled by the appellant when signing the labor contract with the appellee. In 2020, due to the organizational restructuring of Wal-Mart (China) Investment Co., Ltd., as many as 17 1 person were involved in the real estate operation department, and the Appellant did not adjust the appellee's post maliciously or in disguise. Therefore, it is objectively necessary for the appellant to adjust the organizational structure according to the deployment of the headquarters in the case of major changes in the external market operating environment due to the COVID-19 epidemic in 2020, which is in line with the statutory situation that "the objective conditions on which the labor contract was concluded have changed significantly, resulting in the inability to perform the original labor contract" as stipulated in Item (3) of Article 40 of the Labor Contract Law of People's Republic of China (PRC).

For another example, in the second-instance case of a labor contract dispute between (202 1) Shanghai 0 1 Minzhong 15455 Changan Ford Motor Co., Ltd. (hereinafter referred to as "Ford Company") and Zang, the Shanghai No.1 Intermediate People's Court held that "in Item (3) of Article 40 of the Labor Contract Law" As far as this case is concerned, Changan Ford brand is in a state of loss from 20 18 to the first half of 2020. If the enterprise is not allowed to make any adjustment or change, it will inevitably cause great damage to the interests of the enterprise and ultimately affect the interests of all workers within the enterprise. Therefore, if the employer really needs to adjust or change the organizational structure due to market conditions, international competition, technological innovation and other reasons. , should also be considered to be in line with the objective situation, a major change has taken place. "

Two. After full consultation between the employer and the employee, and after exhausting the conditions provided by other positions, both parties fail to reach an agreement on changing the contents of the labor contract.

If an employee's post is cancelled due to organizational adjustment, the employer cannot directly terminate the labor contract with the employee at this time. Because workers are in the weak side of management in labor relations, if the post is revoked not for personal reasons, they should not be made to bear the consequences of losing their job opportunities due to the adjustment of the operating structure of the employer. In order to ensure the maintenance and stability of labor relations, the employing unit shall fulfill its obligation to fully negotiate with the workers to change the labor contract, and make up for the losses caused by the cancellation of posts by providing other job opportunities, and the posts provided shall be reasonable and match the working ability of the workers.

In practice, some employers directly terminate the labor contract on the grounds that "the objective situation has changed greatly" without consulting the workers. Because it does not meet the procedural requirements of the above provisions, the employer will face the risk of paying illegal economic compensation.

For example, in the second instance of (2022) Lu 02 No.3605 Bureau Veritas Shenmei Commodity Inspection (Shanghai) Co., Ltd. (hereinafter referred to as Shenmei Company) and the labor dispute, the Qingdao Intermediate People's Court held that: "Item (3) of Article 40 of the Labor Contract Law embodies the protection of the legitimate rights of workers, while fully respecting the business autonomy of employers. In this case, the notarial certificate submitted by Shenmei Company, the total monthly import and export value from June 5438 to February 2020, the resolutions of the board of directors and other evidence can prove the fact that the sales revenue and operating profit decreased due to the epidemic, and the recorded conversation between Peng and employees of Shenmei Company is not enough to deny the above facts. On this basis, the court held that it was reasonable and legal for Shenmei Company to cancel the corresponding post according to the procedure. After Shen Mei Company made a resolution, Peng was informed in writing to negotiate to change the labor contract, and Peng refused. In the case that both parties fail to reach an agreement on changing the labor contract through consultation, it is legally justified to terminate the labor contract with Peng after paying economic compensation and paying notice in lieu. "

Practical summary

1. If the employer voluntarily adjusts the organizational structure and cancels the employee's post due to business needs, it belongs to the self-management category of the employer and does not belong to the situation that the labor contract cannot be fulfilled due to objective reasons. The employer can adjust the post of the laborer, and the post adjustment should be reasonable, otherwise it will face the risk of illegally dissolving the labor contract and paying compensation. Most of these disputes are post adjustment disputes.

2. If the employer is forced to adjust the organizational structure due to objective circumstances, it can be considered as the situation that the labor contract cannot be fulfilled due to changes in circumstances. At this point, the employer should fully negotiate with the employee to change the contract. If the two parties fail to reach an agreement, the employer may terminate the labor contract and pay the laborer the corresponding economic compensation. If the employee fails to notify one month in advance, he shall also pay one month's payment in lieu of notice.

About the author: Lawyer Kong Xu, graduated from Hohai University Law School, is now practicing in Jiangsu Sushang Law Firm. The main business areas include civil and commercial contract disputes, labor disputes, corporate legal practice and criminal defense. For many years, he has been serving as the legal adviser of large and medium-sized enterprises, and devoted himself to corporate legal advisory services and labor risk prevention and control. Service tenet: pragmatic and professional, and bring the best service experience to the parties with heart. Office address: Block B, Jinshan Building, No.8 Shanxi Road, Gulou District, Nanjing, Jiangsu Province, Tel: 158506830 19 (with the same number on WeChat).