【Legal Question】

Original title: Whether the cancellation of the attendance and clock-in permission can be regarded as the dismissal of the employee

The host of this issue is Zhang Weijie, reporter of Workers' Daily-China Workers' Network

Letters from readers

Hello editors!

我在一家房产中介公司的工程师岗位上工作。2022年8月29日，该中介公司突然停止了我的OA办公权限以及考勤打卡权限。我于2022年9月1日办理离职手续后离开公司。

In the process of resigning, I thought that the company suddenly refused to let me work and punch in for any reason, just because I wanted to leave on my own initiative. Therefore, after that, I have insisted on going to the company to attend and clock in normally, and I also take pictures and videos of the clock-in process every time. During this period, I called Zhou, the person in charge of the company's personnel department, to inquire about this matter, and asked him to tell me directly, "What is the company's arrangement for me now?" Zhou replied to me at the time: "There is no arrangement for you now, you just need to leave your job normally." "I made a recording throughout the call.

Excuse me, is it illegal for this company to terminate the labor contract by stopping my "OA office authority and attendance and punching authority"? Can I claim compensation from him for illegal termination of the employment contract?

Beijing Xiao Li

Clarification for you

Hello Xiao Li!

Article 44 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases stipulates that: "The employer shall bear the burden of proof in the event of a labor dispute arising from an employer's decision to dismiss, dismiss, dismiss, terminate the labor contract, reduce the labor remuneration, calculate the employee's working years, etc." In the case you mentioned, although the company did not explicitly propose to you to terminate the employment contract, as an employer, it terminated your OA system and attendance authority without reaching an agreement with you on the termination of the employment contract, which directly caused you to be unable to punch in and out and log in to the OA system, and the company did not give a reasonable explanation for the above situation.

In addition, since the staff of the company's human resources department clearly expressed the request to let you leave the job on the phone, it can be determined that the company has expressed its intention to terminate the labor contract through actual acts, and its behavior has constituted an illegal termination of the labor contract. Therefore, the company should pay you compensation for illegally terminating the employment contract.

Here, it is necessary to remind both parties to the labor relationship that, according to the provisions of the Labor Contract Law, when the employer directly issues a notice of termination of the labor contract to the employee, the employee has the right to claim economic compensation or compensation. However, in practice, there is a phenomenon where, after a dispute arises between an employer and an employee, it does not clearly inform the employee of its intention to dismiss, but takes advantage of its dominant position to evade legal liability by removing the employee from the work group chat or turning off the clock-in privilege, so as to force the employee to leave the job. This kind of "disguised dismissal" deprives the employee of his or her labor rights, and even if the employer does not clearly express its intention to terminate the labor contract to the employee, the employer should still bear the adverse consequences and corresponding responsibilities for such violations of laws and regulations.

Beijing Fangshan District People's Court, Wang Jiaxuan