China: Court rules Negative Comments from Co-workers could amount to the basis for Termination
Ms. Guo (the “Employee”) signed an employment contract with am HR agency and was dispatched to work at a top university (the “University”) as the director of an MBA program. Within the probationary period, the University notified the employee that she had failed to meet the recruitment conditions, based on which her employment was terminated. The employee did not accept the termination. She filed for labour arbitration and initiated court proceedings against the University claiming reinstatement. The University submitted negative comments on her work collected from the employee’s supervisors, business partners, co-workers, subordinates and relevant students, as the key evidence.
The Shanghai No. 2 Intermediate People’s Court heard the dispute and eventually ruled in favor of the University based on: (1) the employee’s supervisors, business partners, co-workers, subordinates and students had the closest contact with her work and their comments should be objective; (2) these personnel were from different levels, in different categories, and there was no interest between them, and yet their comments had something in common and could be mutually substantiated; (3) these comments were sufficient to prove that the employee failed to meet the recruitment conditions of the position; and (4) the termination of the employee was legitimate.
Key Action Points for Human Resources and In-house Counsel
Under the current PRC employment laws and regulations, it is a difficult task for the employer to prove the employee is unfit or incompetent for the position, especially when the employee’s work cannot be measured by quantifiable standards. The above precedent provides a good reference for employers in China, on how to effectively accumulate evidence to prove an employee’s unfitness or incompetency for the position.