Mr. Pei is Company A’s employee. One day, Company A sent a ‘Notification on the Negotiation of the Termination of the Labor Contract’ to Pei, which stated, ‘……The company is going to negotiate with you on dissolving the labor contract, please respond in written to the company within 3 days after you have received this notification, otherwise, it shall be deemed that you are agree to dissolve the labor contract.’ 11 days later, Company A sent a ‘Notification on the Dissolution of the Labor Contract’ to Pei. Then the dispute arose. After the second trial, the court decided that Company A had dissolved the labor contract illegally.
The employment relationship is a special civil legal relationship, in which both parties are the civil subjects with equal status, however, the employee shall be managed by the employer. In view of this, while dealing with the rights and obligations related to a labor contract, the employer shall pay special attention to the ‘express intention’ of the employee. In some cases, if an employee keeps silence to the employer’s notification, it could be deemed as the employee accepts such notification; in some other cases, even both parties have agreed on ‘Silence Gives Consent’, the disputes may still arise.
Firstly, for the signing and renew of a labor contract, Article 5 of the ‘Regulations on the Implementation of the Labor Contract Law’ has prescribed that where any employee, after being notified by an employer in written, fails to conclude a written labor contract, the employer shall terminate the employment relationship and notify the employee in written. Therefore, for those circumstances, ‘Silence Gives Consent’ in the notification would be valid.
Secondly, for the modification of a labor contract, Article 35 of the ‘Labor Contract Law’ has prescribed that an employer and an employee may modify the contents stipulated in the labor contract if they so agree upon negotiations. Therefore, ‘Silence Gives Consent’ in the notification might be deemed as invalid. Especially some local regulations, such as in Jiangsu and Beijing, have stipulated that if the employee fails to response after 15 days, it shall be deemed that the employee refuse to accept such modification. But there are 2 exceptions: (1) the actual performance of the employee could be deemed as an acceptance. According to Article 11 of the ‘Interpretation (IV) of the Supreme People’s Court of Several Issues on the Application of Law in the Trial of Labor Dispute Cases’, it stipulates that where the employee has performed the modified parts more than 1 month, and such modified parts do not violate the laws, administrative regulations, national policies, public order and morals, then such modification shall be deemed as valid; (2) some local regulations might support ‘Silence Gives Consent’. For example, Article 16 of the ‘Regulations on the Management of the Labor Contract in Guangdong Province’ has stipulated that for 4 special circumstances, if the receiving party fails to response within 15 days, it shall be deemed that the receiving party agrees with such modification.
Thirdly, for the dissolution of a labor contract, Article 36 of the ‘Labor Contract law’ has stipulated that an employer and an employee may dissolve the labor contract if they so agree upon negotiations. Therefore, normally, it is not easy to obtain the support for stating ‘Silence Gives Consent’ in the relevant notifications. Article 66 of the ‘Notice of the Supreme People’s Court on Issuing the Opinions on Several Issues concerning the Implementation of the General Principles of the Civil Law (For Trial Implementation)’, has stipulated that only when the law so provides or the parties mutually agree, then ‘Silence Gives Consent’ could be deemed as valid. This is a hint for the employer, which says that the employer could consider whether to make an agreement with the employee on ‘Silence Gives Consent’ in the employees’ handbook or the labor contract. Due to the specialty of the employment relationship, and the different opinions held by different local judicial departments, even both parties have agreed on ‘Silence Gives Consent’, it is still risky for the employer to apply ‘Silence Gives Consent’ directly in dealing with those issues related to the significant interests of the employee, such as the dissolution of a labor contract and etc..