On September 6 , 2021 , Company A notified David to go through the resignation procedures on that day. Company A then cancelled David's access card and stopped paying social security. Later, David applied for arbitration, requiring the respondent to pay a total of 72,000 yuan in compensation for unilateral termination of the labor contract.
Focus of the dispute:
Is David 's resignation a negotiated termination of the labor contract proposed by the employee or a unilateral termination of the labor contract by the employee notifying the employer?
Analyze:
One view is that in this case, Mr. Feng applied for resignation from Company A for personal reasons, agreed to resign after 30 days, and was agreed by the head of the company department. This should fall under the situation of the labor contract termination by mutual agreement between the employee and the employer in Article 36 of the Labor Contract Law of the People's Republic of China. It is considered that Mr. Feng proposed to terminate the labor contract and reached an agreement on the termination of the labor contract and the specific time, which is essentially a change in the termination time of the labor contract.
Company A notified Mr. Feng to go through the termination procedures before the agreed resignation date. After being rejected by Mr. Feng, Company A forcibly and unilaterally cancelled his access card and stopped paying social insurance, which violated the legal rights and interests of the employee and was considered to be a unilateral termination of the labor relationship. Company A should pay compensation for illegal termination of the labor contract in accordance with the law.
Another view is that in this case, Feng falls under Article 37 of the Labor Contract Law of the People's Republic of China, which requires an employee to notify the employer in writing 30 days in advance to terminate the labor contract. The 30-day provision is mainly to protect the production and operation order of the employer. The employer can voluntarily give up this right, and Company A can ask Feng to resign in advance.
The arbitration committee agreed with the first view, believing that if the employee notifies the employer in writing 30 days in advance to terminate the labor contract, it is a termination right that can be exercised without the employer's consent, and the employee only needs to comply with the legal procedures.
This case is obviously a case of negotiated termination proposed by the employee. Company A unilaterally terminated the labor relationship with Feng before the agreed date, and should pay compensation for illegal termination of the labor contract.
Our suggestion:
In practice, many employers use the employee resignation application form to manage employee resignation, and all require employees to fill in the resignation date and design a column for approval by relevant management personnel.
However, once the corresponding position is recruited, the employee who intends to resign is required to resign immediately by the employer, despite the fact that both party have agreed on the resignation date. It is recommended that employers should negotiate with the employee on the resignation date in such cases and sign a standardized written resignation agreement.