Brief description of the case

Mr. Ren claimed that he joined Baiyun Company as a product manager in March 2018, with a monthly salary rate of RMB 20,000.In January 2019, the company made a Notice on Adjustment of Work Content, Work Time, and Work Remuneration to Mr. Ren, which contained the following: the company's recent operation is not good, so in order to make every employee in the operation department not to be laid off and not to be unemployed, the company decided to make certain adjustments to the work time, work content, and work remuneration for the personnel in the operation department. In order to keep every employee of the operation department from being laid off and unemployed, the Company decided to make certain adjustments to the working hours, work content and work remuneration of the personnel of the operation department. As you failed in the performance appraisal in the fourth quarter, the Company decided to arrange you to stay at your post in accordance with Article 10 of the labor contract signed with you and adjust your monthly salary to 80% of the minimum wage standard of Beijing, i.e., RMB2,120/month, for the next six months. Mr. Ren proposed to terminate the labor relationship with Baiyun on the ground that the company failed to pay labor remuneration in full. Later, a dispute arose between the two parties, and Mr. Ren requested Baiyun to pay him RMB 33,156.26 for the difference in wages during the period of waiting for work and RMB 20,000 for the economic compensation for the termination of the labor contract through the litigation procedure.

Mr. Ren claimed that the company arranged for him to stay on duty to change his post and reduce his salary, with the purpose of forcing him to resign on his own initiative, and that after he submitted a written objection to Baiyun, the company maintained the decision and moved him out of the workgroups and cancelled his access to the office system, and that he resigned on this basis, and that his claim should be supported.

Baiyun argued that it had arranged for Mr. Ren to stay on duty due to the impact of the economic situation and the significant drop in business, which was a lawful arrangement for him to stay on duty, but did not submit any evidence of the company's operational difficulties.

Court hearing

The court held that the focus of the case was whether the arrangement made by Baiyun was lawful. In this case, Mr. Ren raised clear written objections to the company's decision to suspend his employment and reduce his salary, proving that the two parties had not reached a consensus on the suspension of his employment and that the reasons for the suspension needed to be further examined. In this regard, one, white cloud company does not exist at that time stopping work and business situation; Second, the company has not reached the business situation on the arrangement of employees to stay on duty or performance appraisal submitted evidence, in summary, in the two sides did not reach a consensus on the matter of to stay on duty under the premise of the company unilaterally arranged for Mr. Ren to stay on duty behavior, constitutes a refusal to provide labor conditions, obviously lack of factual and legal basis, it should be in accordance with the labor contract. Therefore, the company should pay Mr. Ren the full amount of RMB 33,156.26 per month in accordance with the monthly wage standard of RMB 20,000 per month stipulated in the employment contract. In view of the fact that Baiyun did not provide working conditions and pay full remuneration according to the employment contract, Baiyun should pay Mr. Ren RMB 20,000 economic compensation for termination of the employment contract.

After the judgment was pronounced, Baiyun appealed. The court of second instance upheld the original judgment. The judgment is now effective.

What the Judges Say

I. Legal attributes of standby duty? Does the employer have the right to unilaterally arrange standby work?

Standby is a special employment arrangement in which workers are separated from their original jobs and wait for further arrangement by the employer under the premise of maintaining the labor relationship with the employer. Article 29 of China's Labor Contract Law stipulates that the employer and the worker shall fully fulfill their respective obligations in accordance with the agreement of the labor contract. Visible, labor laws and regulations do not give the employer the right to unilaterally change the labor contract, such as changes in accordance with the provisions of Article 35 of the labor contract law, should be with the consensus of the workers. Judicial practice, part of the employer is indeed based on objective operational difficulties, the company as a whole stopping work and legally arranged for employees to stay on duty, some employers are abused to stay on duty disguised as pay cuts or forced employees to leave, the judicial referee will be arranged to stay on duty to review the legitimacy of the employer's behavior and to make the appropriate determination in accordance with the law. The employer shall bear the legal responsibility to pay back wages and terminate the compensation if the employer illegally arranges the standby work.

Ⅱ.How to determine the legality of the employer's arrangement of standby work?

First, has the employer reached a consensus with the workers? Staying on duty means that the workers cannot exercise their labor rights, which affects their right to receive full remuneration for their work, and is essentially a change of the work position, work content and remuneration agreed in the labor contract between the two parties. According to Paragraph 1 of Article 35 of the Labor Contract Law, "The employer and the worker may change the content of the labor contract by consensus. Changes to the labor contract shall be in writing." In order to protect workers' right to work and right to life, the employer can arrange for workers to stay on duty with the consensus of both parties.

Secondly, is it in accordance with the law for an employer to unilaterally arrange for an employee to stay on duty? According to Article 12 of the Interim Provisions on the Payment of Wages, an employer's arrangement for an employee to stay on duty requires that the employer meets the three conditions of (1) no reason of the laborer's own; (2) the employer ceases to operate; and (3) the employer pays the employee's stay-on duty wages or basic living expenses.

In judicial practice, some employers simply based on business losses, departmental abolition, and other reasons, and can not arrange for employees to be laid off. The employer's list shall not be targeted and punitive, if the normal operation of the company's departments and individually designated part of the employees to be on duty, it is clear that the lack of lawfulness and reasonableness, the employer should bear the corresponding adverse consequences.

Ⅲ.What are the common types of evidence in labor dispute litigation?

Workers can collect and retain the following evidence after facing “being” on standby: (1) written notice of standby to prove that they have been placed on standby; (2) negotiation of standby chat records, email exchanges, etc. to prove that they have rejected the standby arrangement and have not reached a consensus; (3) evidence of the company's business situation to prove that the company is still operating normally; (4) pay stubs; and (5) the employer should not be able to provide any evidence to prove that the company is still operating normally. normal operation; (4) pay stubs, bank flows, etc., to prove that the company did not pay the full amount of wages during the waiting period.

If the employer claims that the reasons for the layoff are legitimate, it should focus on retaining evidence including: (1) the “Layoff Agreement” signed with the employee; (2) third-party audit reports, notices of work stoppage and production stoppage and other information reflecting the business situation, proving that there is indeed a work stoppage and production stoppage of the employer; (3) resolutions of the staff congress and so on, proving that the arrangement of the employee's layoff is made through the democratic procedures. (4) Notices of work stoppage and production suspension and notices of standby duty served to the employees.

Ⅳ.How will the wages be paid to the workers after they have been legally arranged to be on standby?

According to Article 27 of the Provisions on Payment of Wages in Beijing, "If the employer stops work or business not due to the worker's own reasons, the employer shall pay the worker's wages in accordance with the provision of normal labor during a wage payment cycle; if more than one wage payment cycle is exceeded, the wages may be paid in accordance with the labor provided by the worker at the standard newly agreed upon by the two parties, but the wages It shall not be lower than the minimum wage standard of the city; if the employer does not arrange for the worker to work, it shall pay the worker's basic living expenses at not less than 70% of the minimum wage standard of the city. Where the State or the city provides otherwise, such provisions shall apply." It can be seen that the arrangement of standby duty does not exempt the employer from the legal obligation to pay wages or basic living expenses, and the employer should emphasize the protection of the basic treatment of workers.

This article is reprinted from the WeChat public number “Beijing Haidian Court”, with thanks!