China: 劳动法最前线——从公司人事的角度看劳动法动向 第 169 回员工辞职又反悔的处

Last Updated: 30 January 2018
Article by Broad & Bright

员工辞职后又反悔,该怎么办?

中国《劳动合同法》第 37 条规定,"劳动者提前三十日以书面形式通知用人单位,可以解除劳动合同"。根据该条规定,辞职是员工的权利,无需用人单位同意或批准。实践中,因员工辞职产生劳动纠纷的机率较小,但凡事亦有例外。近期,笔者接到几例咨询,都是关于员工主动提出辞职后,出于各种理由又反悔的,比如辞职是因与用人单位发生矛盾而一时冲动、辞职后发现怀孕或生病等。员工辞职后又反悔,不仅给人事管理带来麻烦,处理不当还会产生法律纠纷。笔者就遇到过一起员工辞职后又反悔,用人单位最后被迫给员工发出了单方解除通知,结果用人单位不但输了官司、还被判向员工支付赔偿金的案例。那么,用人单位应如何管理员工辞职从而最大可能降低法律风险呢?

要解决这一问题,首先应当从法律性质上对员工辞职予以分析和界定。《劳动合同法》规定员工辞职需提前 30 天通知用人单位,这一规定的本意是对员工辞职权进行限制、给用人单位的工作交接和招录新人留出时间,从而保护用人单位的利益。但实践中恰恰因为该"提前 30 天"的规定,使得人们对于辞职行为的效力产生争议,有人认为辞职一经做出立即生效,而有人则认为辞职应在做出后第三十天才生效、在此之前员工都可以撤回辞职。笔者认为,

《劳动合同法》第 37 条规定的是员工的任意辞职权,这是一种形成权,即只根据员工做出的辞职的单方意思表示就发生法律效力,无须作为相对方的用人单位的同意或批准。根据《民法总则》第 137 条和 141 条的规定,员工辞职的意思表示在到达用人单位之时即发生法律效力,未经用人单位同意,员工无权撤销;同时,员工只能在其辞职的意思表示到达用人单位之前或同时才能撤回辞职,当辞职的表示一旦到达了用人单位,员工就丧失了撤回的权利。也就是说,一旦员工向用人单位提出了辞职、用人单位知道了其辞职的意思,那么除非经用人单位同意,员工即不能撤回也不能撤销其辞职。

在明确了辞职行为的法律性质之后,辞职行为的管理就变得简单明了,以下是律师建

议:

  1. 审查并完善员工辞职申请的形式。无论是根据《劳动合同法》第 37 条的规定还是 从证据固定和保存的角度来说,用人单位均应要求员工以书面形式提出辞职申请。如果员工口头提出辞职,应尽快要求员工将辞职申请落实到书面上来。
  2. 审查员工的离职原因。因确认员工是因个人原因提出辞职。根据《劳动合同法》第38 条的规定,如果员工虽然提出辞职,但其辞职理由是因为用人单位未依法提供劳动条件、劳动报酬或缴纳社保等等,用人单位应向劳动者支付经济补偿,用人单位对此不可大意。
  3. 尽快对员工的辞职申请做出回应。除非是希望挽留的关键岗位和重要员工,在收到员工的辞职申请后,用人单位应尽快对员工做出回应、表示用人单位已经收到辞职表示,并确认离职时间和辞职原因,尽快安排工作交接。
  4. 审查员工的加班补休和未休年假情况,并在离职日前做出适当的安排,以避免支付相应的经济补偿。

撰稿人:卢伟

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