[case]
Brief introduction of details of a case
On Feburary 1, 2015, some company and Ji Mou sign a deadline to be on Feburary 1, 2015 - the agreement January 31, 2016, conventional company recruits Ji Mou to be the chief inspector of Nanjing branch.
On November 13, 2015, the company gives out suspend sb from his duties to inform to Ji Mou, main content: Some is in discipline to allow to fall without the company, turn client Zhang money into individual account, fall in the circumstance without financial accredit at the same time, turn money to the supplier directly, this behavior violates system of company financial rules badly already, prevent chief inspector place now one duty, processing of suspend sb from his duties.
On November 17, 2015, the company gives out punishment to inform to Ji Mou again, above narrates reason discharge Ji Mou.
On December 14, 2015, ji Mou arbitrates to labor dispute committee applies for the arbitration.
On July 7, 2016, arbitral appoint give a ruling: The company pays Ji Mou to break the law remove labor contract compensation. The company refuses to obey this adjudication, appeal to to the court.
Forensic court decision
Court of first instance adjudicates the company pays pay Ji Mou to break the law remove labor contract compensation, 2 careful maintain first instance to adjudicate.
[analysis]
One, this case analysis
" labor contract law " thirtieth 9 the 2nd regulation, laborer violates the regulations system of unit of choose and employ persons badly, unit of choose and employ persons can remove labor contract.
In this case, the company advocates Ji Mou disobeys the reason of company rules system badly, fasten Ji Mou do sth without authorization to turn the business money of the company into its individual account. But the allegation according to Ji Mou, pay treasure to turn through the individual Zhang is the company's commonly used means, and both sides is approbated consistently in front courtyard careful, ji Mou is in after getting money, part at morrow, tertian turn this to company controller entirely, ought to maintain Ji Mou to be not put in the behavior of worth of baleful embezzlement company.
In the meantime, the regulations system of the company is not right concerned business money receives those who pay flow to make specific provision, prohibit related lack especially sexual regulation.
Accordingly, the company proves without evidence Ji Mou exists to violate age act badly, also did not penalize regulations institution of Ji Mou, the case of the violates unit of choose and employ persons badly regulations system that Ji Mou's behavior does not belong to law to set.
2, why should make regulations system?
The core that labor concerns is laborer labor is engaged in below the management of unit of choose and employ persons, unit of choose and employ persons reflects the regulations system that is unit of choose and employ persons to the labor management of laborer, if do not have regulations system,unit of choose and employ persons will not realize the labor management to laborer.
The punishment with most severe to the management of laborer unit of choose and employ persons works to remove contract, unit of choose and employ persons removes the flow that the contract is about to set strictly according to law undertakes.
" labor contract law " thirtieth 9 (error sex removes) , the 40th (blame error sex removes) mix the 41st (economy cuts down the member of persons employed) it is OK to stipulate is unit of choose and employ persons remove the case of labor contract, use among them most, cost is the smallest is error sex in removing " the regulations system that violates unit of choose and employ persons badly " .
Unit of some choose and employ persons is OK and applicable before 2008 " byelaw of company worker rewards and punishment " the regulation will remove labor contract, but " labor contract law " after carrying out, this byelaw has abolished, the punishment to employee can the regulations system with self-ordained unit of basis choose and employ persons.
Regulations system is unit of choose and employ persons is used " the regulations system that violates unit of choose and employ persons badly " remove the premise of labor contract, without lawful and effective regulations system, will accomplish impossibly remove legally labor contract.
3, how to make regulations system?
Regulations institution is so principal, it is very difficult to make lawful and effective regulations system?
Not difficult.
We see law of one laxative remedy have what kind of demand to providing a system.
" labor contract law " the 4th the 2nd section provision " unit of choose and employ persons is being made, revise or reward of decision concerned work, working hours, rest material benefits of sanitation of off, labor safety, insurance, worker grooms, work discipline and work norm management involve worker directly the regulations system of personal interest, ought to classics workers congress or all worker discusses, offer plan and opinion, with labour union or the worker talks things over on behalf of equality affirmatory. With labour union or the worker talks things over on behalf of equality affirmatory..
Read article carefully, we can be the program summary of regulations system:
1, democratic process
① gives the content that draft workers congress or collectivity worker discuss;
② lets a workers congress or all worker offers plan and opinion;
③ waits for plan and opinion feedback to arrive after unit of choose and employ persons, draw opinion and proposal adequately;
④ edits after draft again with labour union or the worker talks things over on behalf of equality, decide finally.
Above program should have corresponding conference summary to try to record, form two conferences summary, it is the conference summary that seeks an opinion, 2 it is to discuss affirmatory conference summary, join meeting personnel to want to be in word of conference summary be the lucky number.
Law also attends a meeting without the regulation must undertake centrally, be to will discuss summary to had been done in solid Wu, look for relevant personnel to sign again.
And ask an attention, legal provision is to listen to an opinion, agree without requirement workers congress or collectivity worker, so, final power to make decisions or in unit of choose and employ persons. What law emphasizes is to should have this program.
2, tell a program
① undertakes grooming to employee, grooming word of record be the lucky number affirms;
② employee is in " the registration form that enter office " in statement tells dawn regulations system;
③ extends to every employee " employee manual " affirm sign after receiving sth;
④ is in " labor contract " in state a clause witting regulations system.
Above means chooses a kind can, it is most safe announcement means, column of use announcement of avoid by all means, website, QQ group, small letter group etc tell kind.
Must have tell a program, otherwise what regulations system makes is again perfect, without evidence the proof told worker, witting case is denied to fall in laborer, everything is 0.
3, content wants lawful and reasonable
① content should have lawful sex, cannot have lawbreaking, administrative regulations mandatory formulary content, be opposite for instance marriage, bear, belief of nation, phyletic, religion make restricted provision.
② content should have rationality, stuff place makes fault and its place suffer castigatory program to want to match, stipulate in common unit smoking can remove for instance labor contract, do not have rationality apparently; But if be in combustible the danger that explodes easily is changed taste an unit, have rationality.
