We have discussed the salary for suspension in the last issue, and this time the topic is the period for suspension.
When an employee is involved in a violation of internal rules and regulations, or suspected in a violation of laws and regulations, the employer may require the employee to be suspended for investigation; and the suspension period is determined case by case. The period may be several days, such as, in the case (2014) Su Zhong Min Zhong Zi No. 03635, it is 3 days; or several months, such as, in the case (2019) Jing 02 Min Zhong No. 12698, it is 75 days; or even more than 1 year, such as, in the case (2018) Jing 01 Min Zhong No. 29, it is 2 years.
Due to the differences of the investigated matters, involved persons, difficulties in obtaining information and etc., it is impossible to set a specific period. Therefore, there is no law, regulation or judicial interpretation which has prescribed a specific period. However, this does not mean that the employer could decide the period without rationality and necessity.
How to determine the suspension period?
Firstly, if an employer’s internal rules and regulations have stipulated the days of this period, or rules on determining the period, normally, such maximum requirements shall not be exceeded. For example, in the case (2015) Hei Jian Min Zai Zi No. 51, because the “Employee Reward and Punishment Regulations” stipulated that a single suspension period shall not exceed 15 days, in consider of other relevant facts, the court held that the employer had illegally conducted the suspension which was more than 15 days. In view of this, if a single case is too complicated, and takes more time for investigation, it is recommended to explain the reasons and specific requirements to the employee, and obtain the employee’s confirmation.
Secondly, if there are no internal rules and regulations about the suspension period, the rationality shall be decided case by case. Normally, the employer would pay less salary to the employee for the suspension period. If there is any dispute on the salary difference, the court would take relevant facts into consideration and determine whether the suspension period is rational. For example, if an employee is involved in a crime, the court would support the employer to pay a lower salary within a longer suspension period.
Thirdly, the method and content of the notification of suspension are very important. In the judicial practice, if an employer verbally notified the employee, normally the employer would lose the lawsuit. For example, in the case (2018) Su 05 Min Zhong No. 4080, the company verbally notified the employee to hand over all his work, and suspend work, but it did not mention the suspension period. The employee complained to the labor inspection team, and the company still failed to notify the suspension period. The company sent a notification of reinstatement, until the employee filed a labor arbitration application. In the end, the court held that the company had terminated the labor contract when it verbally required the employee to suspend work, and this was an illegal termination. Where issuing a written suspension notification, it is recommended to state the reason, period, and the relevant requirements for the suspension period. In addition, if the investigation has not been accomplished within the first suspension period, it is recommended to send the second notification instead of extend the period without any written notification.