China: 大湾区一体化与"客观条件发生重大变化"解雇员工的适用

Last Updated: 24 July 2019
Article by Shen Wei
Most Read Contributor in China, July 2019

粤港澳大湾区一体化将会使促使该地区企业紧密度日益增加,企业搬迁并购重组将会成为常态。企业搬迁并购重组过程中,以客观情况发生重大变化为由处理员工关系是常见方式。加强对"客观情况发生重大变化"的认识,对于降低企业用工管理风险十分重要。

根据有关法律规定,企业在依据客观情况发生重大变化这一理由处理员工劳动关系时需要满足三个条件:(1)符合客观情况发生重大变化的情形;(2)劳动合同无法继续履行;(3)企业需与劳动者进行充分协商。本文根据对大湾区(内地)部分法院处理类似案件裁判观点的梳理,希望为大湾区企业提供一些思考和帮助。

一、关于"客观情况发生重大变化"的认定

大湾区范围内各个地区的法院对于客观情况发生重大变化的解释具有不同口径,一方面,有些法院严格依照法律的规定,认为超越法律所规定的范围均不属于客观情况发生重大变化。另一方面,有些法院在法律规定之外对于客观情况发生重大变化做了扩大解释,譬如有地区法院认为:客观情况发生重大变化应当是指除经济问题之外导致的不能继续履行合同的情况;另外还有地区法院认为:"客观情况"是指双方不可控制的因素或者不可归责于双方的情形,如发生不可抗力、政府政策原因、法律法规修改或者废止等,或者企业迁移、被兼并、资产转移、重大技术革新、产品结构和经营方式调整等。下面根据有关案例做具体分析。

(一)认定为"客观条件发生重大变化"的情形

1.与主要经营业务不相关的岗位外包

东莞市第三人民法院(2015)东三法樟民一初字第740号

法院认为:客观情况发生重大变化应当是指除经济问题之外导致的不能继续履行合同的情况。从被告公司的经营业务来看,该公司从事的是生产和销售印唛、织唛等业务,并没有餐饮的业务,如将公司饭堂的业务外包给专业的餐饮公司,是符合社会经济对于专业化分工和发展的规律和趋势,并无不妥,也没有违反相应的法律规定,应当予以认可。

2.政府部门的行政决定

清远市清新区人民法院(2015)清新法民一初字第346号

法院认为:清新一中经清远市清新区教育局、清远市清新区政府采购管理办公室的同意对学校的清洁保洁服务进行公开招标,这符合法律规定。由于公开招标,造成清新一中与黄某签订的劳动合同所依据的客观情况发生重大变化,劳动合同已无法履行。

3.部门解散

东莞市中级人民法院(2014)东中法民五终字第991号

法院认为:因双方就苏丽香的工作调整问题协商未果,并且苏丽香已经离职,本案符合上述"劳动合同订立时所依据的客观情况发生重大变化,

4.行政机构改革

珠海市中级人民法院 2018粤04民终3142号

法院认为:

一审法院:香洲区工商局单位的减员,系依据上级机关文件进行,行政机关事业单位在进行机构改革过程中,因人员整合而出现的富余人员必须进行减员,不由香洲区工商局的意志所决定,翁某属香洲区工商局因人员整合后出现的富余人员范围,香洲区工商局依据上级机关文件并结合本单位实际情况作出的解除其劳动合同的行为,该情形符合"客观情况发生重大变化"。

二审法院:在机构、职能整合过程中,出现同一岗位人员富余需要裁员属合理现象,党组会议纪要、谈话记录虽然为香洲区工商局单方制作,但能够证明在解除劳动合同之前,香洲区工商局已经对解除劳动合同的必要性进行了充分研究,并且将无法继续履行劳动合同的原因告知翁某,可信度较高,一审法院结合上述证据反映的事实认定客观情况发生重大变化、致使劳动合同无法履行并无不当,本院予以确认。

5.因工厂调整经营策略而调整内部管理机构的设置

广东省高级人民法院 (2018)粤民再194号

法院认为:公司因经营策略的调整撤销技术质量部,需对赵某在内的部分员工工作岗位进行调整。该事由属于劳动合同订立时所依据的客观情况发生重大变化的情形。

6.被法院查封导致劳动合同无法继续履行

东莞市第三人民法院 (2015)东三法民一初字第493号

法院认为:公司投资建设的"江业商业大厦"因其他纠纷被法院查封,导致陈某无法继续安排原告在该工地工作,即双方的劳动合同因客观情况发生重大变化无法继续履行,公司根据法律的规定,可以解除与原告之间的劳动关系

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