Three employees suffered "last elimination"
If labor arbitration is a lawsuit, 46-year-old Ji Shigang has fought two lawsuits with his "owner"-Nanyang Wolong Sub-branch of Agricultural Bank of China (hereinafter referred to as Wolong Agricultural Bank). In the first scene, as the applicant of labor arbitration, he is the "plaintiff"; In the second game, the Agricultural Bank of Wolong District refused to accept the arbitration result and sued Ji Shigang to the Wolong District Court. Ji Shigang became the defendant. All this is related to his being eliminated from the bottom by the "East Society".
"I still feel quite heavy after receiving the winning judgment." Yesterday, Ji Shigang told reporters, "I think the bank will appeal. I'm waiting for the next lawsuit. There is still a long way to go. Even if I win in the end, it depends on execution! "
Ji Shigang also has two "comrades-in-arms"-colleague Wang He and Fu Wanxia, who were finally eliminated. Three people were sued to the court by the Agricultural Bank of Wolong District.
198 1 In March, Ji Shigang was recruited to work in Agricultural Bank of Wolong District, and worked as a cashier, accountant and credit officer. "I worked hard and gave my youth and sweat to the enterprise." In September 2004, the two sides signed an open-ended labor contract. Ji Shigang said that in June 2005, 1 1, the bank forced him to enter the so-called internal labor market without consulting with him, and paid the minimum living allowance of 260 yuan every month, plus 100 yuan, and paid 103 yuan after deducting personal insurance and pension.
Zheng He, 50, and Fu Wanxia, 44, were recruited to work in Agricultural Bank of Wolong District on 198 1 and 1985 respectively. They also worked as cashiers, accountants and credit officers. They also signed an open-ended labor contract with the bank, which was eliminated from the bottom in 2005 1 1.
The labor arbitrator won the case.
According to the evidence provided by the Agricultural Bank of Wolong District, in July 2003, the Agricultural Bank issued the Notice on Doing a Good Job in Diversion of Surplus Personnel in 2003, requiring all secondary branches and directly affiliated units to do a good job in institutional merger and diversion of surplus personnel in 2003.
According to this document and the Interim Measures for Performance Elimination of Employees of Nanyang Agricultural Bank, the relevant provisions on performance elimination of employees of Nanyang Agricultural Bank were formulated. The Agricultural Bank of Wolong District held a workers' congress on June 5, 2005+10/October 38, 2005, and deliberated and adopted the detailed rules for the elimination of employees' performance and violation of discipline in the third quarter of 2005. On June 5438+065438+ 10, 2005, the Agricultural Bank of Wolong District made a decision according to these rules, and Ji Shigang and others were determined to be the last to be eliminated. ...
After being eliminated from the bottom, Ji Shigang and other three people asked the Agricultural Bank of Wolong District to solve the work problem in writing.
In March, 2008, Agricultural Bank of Wolong District gave an "unsatisfiable" reply to the three people's request to resume work, reissue the wages and benefits since they entered the internal labor market according to the standards of on-the-job employees, and treat the social security standards as on-the-job employees.
The three people refused to accept it and reported it to the Municipal Agricultural Bank, which made the same reply. To this end, the three people applied to Nanyang Labor Dispute Arbitration Committee for arbitration on this matter.
After accepting the case, the Labor Arbitration Committee held a public hearing, and made an arbitration award in August 2008, ruling that the Agricultural Bank of Wolong District arranged or adjusted jobs for the three people within 15 days after the award came into effect, paid back the old-age insurance premiums and late fees of the three people, and paid back the wages of each of the three people from 12 in 2005 to 2383 yuan per month.
The bank sued three employees.
Agricultural Bank of Wolong District refused to accept the result of labor arbitration and filed a lawsuit in Wolong District Court in September 2008.
The plaintiff, Agricultural Bank of Wolong District, claimed that their actions were based on the relevant documents of the superior bank. The Detailed Rules for Handling Staff Performance and Violation of Discipline in the Third Quarter of 2005 of Wolong Sub-branch is a normative document discussed and adopted by the staff and workers' congress of our bank. According to this regulation, the bank informed the defendant (note: 3 employees) to enter the internal labor market for personnel diversion in combination with the trend of merging inefficient outlets and personnel diversion of Agricultural Bank of China. The plaintiff's behavior is not illegal, but it involves implementing the relevant national financial policies according to the requirements of the superior bank. After the defendant entered the internal labor market, the plaintiff paid the defendant the basic living standard of "minimum living standard stipulated by the local government+100 yuan" according to the documents, and paid the social security fund for the defendant according to the minimum wage stipulated by the social security department. Therefore, the plaintiff should not pay wages and social security fees separately. Therefore, the Agricultural Bank of Wolong District requested the court to decide that the plaintiff's act of letting the defendant enter the internal labor market according to the internal rules and regulations was legal and effective, and no longer paid the defendant's salary and social security benefits separately, and the legal expenses were borne by the defendant.
The workers said that the final elimination was illegal.
Ji Shigang and others argued that the plaintiff, Agricultural Bank of Wolong District, let it enter the internal labor market by way of "last elimination", which seriously violated labor laws and policies and deprived it of its labor rights.
Liu Mingshun, the entrusted agent of the three employees and lawyer of Yinbo Law Firm in Henan Province, believes that it is mandatory to conclude a written labor contract between the employee and the employer, and no unit or individual may terminate or change it without legal procedures. "It is a legal procedure for three employees to conclude an open-ended labor contract with the plaintiff, and it is legal for both parties to perform their respective rights and obligations according to law. The plaintiff forced three employees into the so-called internal labor market without consulting them, depriving them of their right to work. "
In court, the agents of the three employees argued that the relevant documents relied on by the Agricultural Bank of Wolong District seriously violated the labor law and national policies, and the final elimination did not belong to the labor laws and policies, so there was no legal basis. Every job and thing has a problem that ranks last. Under the condition that the labor contract is still valid, the last elimination system is unscientific and is an excuse for the plaintiff to infringe upon the labor rights of Ji Shigang and others. Even if the plaintiff thinks that they are incompetent, they can only be sent home directly by adjusting their jobs or training, which obviously does not conform to the provisions of labor laws and policies.
The agents of the three employees also claimed that the plaintiff's so-called internal labor market existed in name only, and the agency did not have the administrative licensing procedures of the labor administrative department, nor did it have office space, office staff and office records. In addition, all three employees are zero-employment families and there are no other employees. They signed a fixed-term labor contract with the plaintiff. Even if ABC needs to lay off employees, according to the relevant provisions of the Labor Law, these three employees are not the targets of layoffs. Obviously, the plaintiff's "last elimination" is illegal.
Ji Shigang and others suggested that the plaintiffs did not fulfill their labor contract obligations, and they were not at fault, so their labor remuneration and pension insurance benefits should not be reduced, and they should enjoy the same treatment as bank employees. Therefore, it is requested to confirm that the plaintiff's "last elimination" violates labor laws and policies in accordance with the law, and to order the plaintiff to arrange his work immediately, and to order the plaintiff to pay his old-age insurance, late fees and replacement wages.
The court rejected the bank's request.
The Wolong District Court confirmed yesterday that a judgment has been made in this case, and the judgment has been delivered to all parties a few days ago.
The court decided to reject the plaintiff's claim of Agricultural Bank of Wolong District; Within one month after the judgment came into effect, the plaintiff arranged jobs for the three defendants and reissued the corresponding wages.
The court held that all three employees of the defendant signed fixed-term or non-fixed-term labor contracts with the Agricultural Bank of Wolong District to establish a long-term labor contract relationship. The plaintiff has already enjoyed the rights of labor contract when the administrator works, and the defendant, as a laborer, enjoys the labor rights endowed by the Constitution while fulfilling the obligations of labor contract.
According to the laws of our country, labor is the basic right and obligation of workers, and no unit or individual may deprive it without legal procedures. The Agricultural Bank of Wolong District ranked the employees' performance, and found that the defendant was eliminated and was in a waiting state. However, due to the labor contract relationship between the two parties, it is determined that the superior performance of employees does not necessarily lead to the consequences of poor performance of personnel.
The court held that employers should take various measures to improve employees' labor skills even if their performance in this position is at the bottom. According to the Labor Contract Law, the contractual relationship between the employer and the employee has only two states, namely, the existence of the labor contract or the dissolution of the labor contract. However, the labor contract between the original defendant and the defendant has not been terminated, and the labor relationship between the two parties still exists. As an employed person, the defendant shall enjoy the same salary and pension insurance benefits during the labor relationship.
The court held that although the defendant Ji Shigang and others are no longer on the job, the reason is the plaintiff's management behavior. It is precisely because of this unreasonable management behavior that the plaintiff did not perform the labor contract thoroughly and the defendant could not provide normal labor. The subordinate and dependent relationship between workers and enterprises leads to the workers being in a relatively weak position when disputes occur. Therefore, the defendant is not at fault. The Agricultural Bank of Wolong District, the plaintiff, shall reissue and repay the unpaid wages and unpaid endowment insurance of Ji Shigang and others during the waiting period.
The court also held that the plaintiff Agricultural Bank of Wolong District, as an employer, diverted personnel according to the spirit of the relevant documents of the superior bank, and its behavior itself was a process of implementing the autonomy of employing people within the enterprise, which did not involve the implementation of the national financial policy, but the adjustment of labor and personnel relations. Therefore, its implementation process must conform to the provisions of the labor law. The plaintiff determined the defendant as the final elimination object according to the internal regulations, which not only made the defendant Ji Shigang and others lose the opportunity to provide labor, but also made the defendant's life difficult. Defendant Ji Shigang and others have an employment relationship. Both parties have signed labor contracts with or without a fixed term, and there are no other employees in the family. Therefore, the behavior of the plaintiff Wolong Agricultural Bank did not comply with the relevant provisions of the Labor Law.
Yesterday, Sun Chunyu, the entrusted agent of Agricultural Bank of Wolong District and lawyer of Henan Qingjian Law Firm, told reporters on the phone that his client bank had not decided whether to appeal.
The presiding judge interprets the "last elimination system"
The reporter learned in the interview that the last elimination system is a performance management method proposed by Jack, the former CEO of General Electric Company. Welch first proposed to introduce China in the 1990s, which has positive significance in maximizing employees' potential and personal performance. It has been widely adopted by some enterprises and institutions, but its legitimacy has been criticized.
Liu Mingshun, the entrusted agent and lawyer of the three employees, told the reporter that the case has universal significance. He also said that the three employees have always reflected problems according to procedures and taken legal channels, which shows that their quality is high.
The reporter noted that the judgment of this case affirmed the positive side of the last elimination system, but at the same time pointed out that it lacked rigorous science. Liu Mingshun expressed his appreciation for this way of reasoning in the judgment.
Yesterday, Wang Qingshan, the presiding judge of this case, explained to our reporter in detail their understanding of the last elimination system in this case.
Wang Qingshan said that from the perspective of enterprise management, performance appraisal, as an incentive measure for internal personnel management, is undoubtedly positive. It shows the performance gap by evaluating and ranking the performance of internal employees, so as to stimulate the enthusiasm of backward employees, thus improving work efficiency and realizing the win-win goal of employment enterprises. However, it is obviously inappropriate to be "eliminated" in the "last place". Because employees' performance is restricted by many subjective and objective factors, it is unfair to define employees' business ability only on this basis. The behavior of directly "eliminating" workers waiting for posts shows the strength of employers and the one-sidedness of evaluation methods. Layoff is a measure for enterprises to increase efficiency, and it is a concrete manifestation of enterprises exercising their internal management rights independently, but the exercise of rights cannot be separated from the legal framework. Therefore, as a normative document to adjust the internal labor and personnel relations of enterprises, the implementation rules shall comply with the relevant provisions of labor laws and regulations.
Wang Qingshan told reporters that in this case, the plaintiff Wolong Agricultural Bank, according to the spirit of the superior documents, passed the "Detailed Rules for the Implementation of the Last Elimination of Employee Performance" after deliberation by the employees' congress of the bank. As a rule and system of enterprise internal management, its formulation procedure conforms to the law, but as far as the object and content of its adjustment are concerned, "last elimination" lacks rigorous science, because everything has a beginning and an end, and beginning and end are a relative concept, which exists in all aspects of social life.