Company A deemed that Zhang worked with a low efficiency, which should belong to the serious violation of the conduct rules as stipulated in the “Employee Handbook”, so it dissolved the labor contract with Zhang. Zhang filed to the labor arbitration committee. Finally, the committee found that Company A lacked of evidence to prove that Zhang had seriously violated the conduct rules, and ruled against Company A.
In practice, “Slack Off” has two types, 1) the employee works with low efficiency; 2) warm chair attrition. Then, how to deal with such “Slack Off” appropriately for those employers? For different types of “Slack Off”, different solutions shall be applied.
Firstly, for the employee works with low efficiency, the laws and regulations related to “incompetent” could be applied. According to “Circular on Certain Provisions of Labor Law” Article 26, which stipulates that “incompetence“ refers to an employee cannot complete the task prescribed in the labor contract or the workload of the employees who undertake the same work in the same work position. In addition, “Labor Contract Law” Article 40 has stipulated that the employer could dissolve the labor contract only when the employee is incompetent to his position and is still so after training or changing his position. In view of this, the employers shall pay attention to 2 aspects in dealing with such issues: (1) the employer shall specify the reasonable requirements, or the agreed tasks, or the reasonable workload, and keep the relevant evidence which could prove the employee has failed to accomplish the aforesaid requirements, tasks or workload; (2) the employer should train the employee, or change his/her position appropriately (Note: keep the relevant evidence). Only after the employer has fulfilled the aforesaid two aspects, then it could dissolve the labor contract in accordance with “Labor Contract Law” Article 40. In the above case, Company A has prescribed the “low efficiency” as the serious violation of conduct rules, and dissolved the labor contract, which is obviously a departure from the legislative decree. And this is the reason for the aforementioned ruling.
Secondly, for “warm chair attrition”, the laws and regulations related to “serious violation of conduct rules” could be applied. There are 2 key points shall be paid attention to: (1) the employer should clearly define the definition of absenteeism and the requirements for dissolve of labor contract related to absenteeism. For the definition of absenteeism, the employer should prescribe that if the employee comes to work but refuses to provide labor, such action shall be deemed as absenteeism. “Regulation on Rewards and Penalties Given to Enterprise Staff and Workers” has once stipulates the provisions related to absenteeism and relevant dissolve requirements, however, it has been abolished, so if the employer fails to prescribe such provisions in its internal rules and regulations, then it would be lack of basis to apply the laws and regulations related to “serious violation of conduct rules”; (2) the employer should collect the relevant evidence related to “warm chair attrition”. In view of different circumstances, the employer could choose different methods to keep the relevant evidence, such as the department’s meeting memo, inviting the labor union representatives to participate in the negotiation with the employee, or using the security probes and etc..
The relevant articles of “The Research and Reference issued by Shanghai High Court Civil Tribunal 1” ( No. 15), and some cases described in “10 Typical Cases of Labor Disputes 2014” released by Beijing Haidian Court, which have conditional affirmed that if the employee refuses to provide labor due to the dispute related to the changing of position, and the employer has prescribed such action shall be deemed as absenteeism and belong to the “serious violation of conduct rules”, then the employer shall be entitled to dissolve the labor contract. So if the employer solves such “slack off” appropriately, it could obtain the support of the judicial departments.