Do you know "forced resignation"?
Do you know the correct operation process for "forced resignation"?
Do you know the pitfalls of "forced resignation"?
A certain private equity fund in Beijing reprimanded the female fund manager for being late to work, leaving early, being absent from work, playing games for long periods of time during working hours, and watching irrelevant videos and websites. In addition, she is still studying for a full-time doctoral program, which seriously affects the quality of her work.
The female fund manager backhandedly sent the company a "Notice of Forced Termination of the Labor Contract" and received a financial compensation of 220,000 yuan.
What kind of magical operation is this?
A judgment on the China Judgment Documents website disclosed the whole story. The forced resignation of this female fund manager can be described as textbook level. Without further ado, let’s start with the case.
The cause of the incident: everything started with salary adjustment
Ms. Zhang is a fund manager of a private equity fund in Beijing. She joined the company in June 2013 and worked her way up from a bond trader to a fund manager. During this period, she also served as the company's legal representative, manager, and supervisor. . It can be said that he is an old employee who has "shared the joys and sorrows" with the company.
In February 2020, after Ms. Zhang gave birth to her son, she began to take maternity leave in accordance with the law and returned to work on July 13. On the same day, the company negotiated with Ms. Zhang and proposed to adjust Ms. Zhang’s salary structure.
Ms. Zhang’s basic salary used to be 27,000 yuan. The company said that Ms. Zhang’s income would remain unchanged and the salary would be adjusted to a basic salary of 10,000 yuan, a job allowance of 2,000 yuan, and a performance salary of 15,000 yuan. The total was still 27,000 yuan. After reaching consensus, the two parties signed the Supplementary Agreement to the Labor Contract.
After that, things lost Ms. Zhang’s control. The salary in July was only 11,518 yuan. The reason mentioned at the beginning was that Ms. Zhang arrived late and left early, etc. In addition, the company also said that Ms. Zhang was absent from work in February, that is, before giving birth, and the money was deducted from her salary in July.
The standard operation for forced resignation is here
On August 1, 2020, Ms. Zhang sent the "Notice of Additional Salary within a Time Limit" to the company through ems:
On August 9, Ms. Zhang did not receive the replacement salary. , and issued a "Notice of Forced Termination of the Labor Contract" to the company through EMS:
You have Zhang Liangji, I have a wall ladder. On August 10, the company not only failed to repay the salary, but also sent a notification letter to Ms. Zhang:
Ms. Zhang did not give in after receiving the "Notification Letter", and the company sent two documents to Ms. Zhang:
You must have heard a lot about being forced to resign, and you can find how to do it on the Internet, but even the time and text are so detailed, it may be the first time you read it. Regarding this paragraph, both ordinary workers and company personnel are worth learning.
Labor Dispute Trial
Let’s continue. Originally, the matter was quite simple. The company deducted employees’ wages, and the employees felt that it was unreasonable to claim that the company was in arrears of wages and were forced to resign. Then everyone could labor arbitration.
But in this case, the company directly ignored Ms. Zhang’s request for forced resignation, and instead said that Ms. Zhang was absent from work on purpose. This is interesting. Now who is Li Kui and who is Li Gui?
1 Ms. Zhang took the company to the Labor Arbitration Tribunal
Ms. Zhang believed that the late arrival and early departure mentioned by the company were the one hour of breastfeeding leave she deserved every day, and the other accusations made by the company were completely false. Therefore, the company falls into the category of " who fails to pay labor remuneration in full and on time" and has the right to unilaterally terminate the labor contract and require the company to pay economic compensation.
According to Article 9 of the "Special Provisions on Labor Protection of Female Employees"
The employer shall arrange one hour of breastfeeding time for lactating female employees during daily working hours...
In the end, the Labor Arbitration Commission supported Ms. Zhang's application , it was ruled that the fund company should pay Ms. Zhang economic compensation of 226,517.48 yuan.
2 The company refused to accept the verdict and filed a civil lawsuit
In court, the company presented a large number of evidence such as photos and videos, rules and regulations signed by employees, WeChat group publicity system, WeChat chat records, union opinions, emails, etc. to prove its statement.
After hearing, the court held that:
The company mentioned that Ms. Zhang’s late arrival and early departure was normal breastfeeding leave, and other evidence could not prove that Ms. Zhang had serious disciplinary violations. In addition, the fund company claimed that Ms. Zhang was absent from work in February and the money was deducted from her salary in July, which obviously lacks legality.
Therefore, it is established that the fund company failed to pay Ms. Zhang’s salary in full and on time. Ms. Zhang's claim that she was forced to leave her job is well-founded in law, and the company should pay financial compensation to the company.
The fund company claimed that Ms. Zhang was absent from work and used this as a reason to terminate the labor contract. After Ms. Zhang filed for forced resignation, the termination did not have legal effect on Ms. Zhang.
In summary, Fund Company should pay Ms. Zhang economic compensation of 226,517.48 yuan.
Sir Wang once said that
"forced resignation" is officially called "forced termination of labor contract." This move not only allows us to terminate our labor relationship with the company, but also allows the company to compensate us a large amount of money. In this case, Ms. Zhang won wonderfully, but not everyone can use it correctly. There are many things to pay attention to when using "forced resignation". If you make a mistake, not only will the compensation be lost, but we may also have to pay a lot of compensation to the company. money.
What is forced resignation?
The so-called forced resignation literally means being forced and unable to work anymore. If you understand it this way, you are totally wrong. Forced resignation has clear regulations and boundaries in the law.
According to Article 38 of the " Labor Contract Law" [The employee unilaterally terminates the labor contract]
If the employer has any of the following circumstances, the employee may terminate the labor contract:
(1) Failure to provide labor as stipulated in the labor contract protection or labor conditions;
(2) Failure to pay labor remuneration in full and on time;
(3) Failure to pay social insurance premiums for workers in accordance with the law;
(4) The rules and regulations of the employer violate the provisions of laws and regulations. Damaging the rights and interests of workers;
(5) The labor contract is invalid due to the circumstances stipulated in the first paragraph of Article 26 of this Law;
(6) Other circumstances under which workers can terminate the labor contract under laws and administrative regulations. .
(7) If the employer forces employees to work by means of violence, threats or illegal restrictions on personal freedom, or if the employer violates regulations and orders or forces risky operations that endanger the personal safety of employees, the employees may terminate the labor contract immediately without any need. Inform the employer in advance.
Only when we encounter these 7 situations can we use the "forced resignation" method. For example, the company does not pay provident fund , the computer is too slow, the boss makes me wear small shoes, etc. These cannot constitute reasons for being forced to resign. If we use these reasons to terminate the labor contract, the result will be that the labor relationship is terminated and we will not get a penny of economic compensation.
What are the pitfalls of being forced to resign?
In fact, Ms. Zhang demonstrated the operation process for everyone in detail when she was forced to resign. Here, I will fill in a few pitfalls for you:
. The reason must be solid.
In this case, Ms. Zhang’s reason was that the company was in arrears with wages. Then July's salary may be paid on July 31, so Ms. Zhang asked the company to make up for the salary on August 1.
However, if the company really pays wages a few days late due to operational problems, or pays part first and makes up for it later, this is usually allowed and does not fall into the category of wage arrears. If this is the case, it would be safer to wait another month, that is, postpone the salary payment cycle, before being forced to resign.
. If you want to use EMS to express
, you need to knock on the blackboard. Many people are aware of the law of forced resignation, but they all think that printing a notice and submitting it to the human resources department is the end of the matter. This is completely wrong. If the company says in court that it has never received it, how can you prove it? It will be very troublesome.
Can I send it by other express delivery? No, the court usually recognizes EMS. For the convenience of proof, it is not recommended that you use other express delivery.
. Don’t write the wrong title.
must be “Notice of Forced Termination of Labor Contract”. Do not write it as an application. The nature of the notice is unilateral termination, and the nature of the application is negotiation between the two parties, which must be agreed by the company. If the company doesn't agree or approve, and we don't go to work, the company can fire us just like this fund company because of our absenteeism. In this way, we won't get a penny, and the company can still claim from us the losses caused to the company due to absenteeism.
is written at the end
According to information on the official website of the Asset Management Association, this private equity fund has also had a brilliant record, and its management scale reached 10 billion yuan in 2017. Since then, the performance has declined year by year, and the current scale has been halved. It is now in a "long-term liquidation state fund". Simply put, it means that the fund has been declared for liquidation, but has not been liquidated after 6 months.
Faced with such performance, it may be a blessing for Ms. Zhang to take the money and leave.
Finally, according to the court ruling, the company accused Ms. Zhang of playing games at work, studying for a Ph.D. and affecting her normal work, etc. However, the company failed to provide strong evidence in court, so the court did not accept it.
Just joking, "If the current market situation is as follows, will fund managers lose less by playing games at work than working hard?"
This is a real case, case number: (2021) Beijing 0105 Minchu No. 52043 . Friends who are interested can go to the China Judgment Documents website and enter the case number to view the complete process.
