[Case Scenario]

Mr. Tan was employed by a Guangzhou based foreign invested air-conditioner company in year 2003 and was in position of production officer and comprehensive officer. Since April 2018, the air-conditioner company believed Mr. Tan slaked off in work. After several times of improvement notice, Mr. Tan still refused to follow the work arrangement suggestion. Consequently, the company decided to dismiss Mr. Tan for slackness in work. Mr. Tan then filed labor arbitration and request double financial compensation for it’s an unfair dismissal. 

[Judgments]

Arbitration: It is an unfair dismissal; the company should pay the compensation.

First instance: It is an unfair dismissal; the company should pay the compensation.

Second instance: The appeal is dismissed. 

[Key Evidence]

From the company:   

1. <Request for instruction regarding response proposal to Mr. Tan's misconduct>

2. <Dismissal Notice>

3. <Witness's testimony> from employee Mr. Song, Mr. Zhang & Mr. Li of the company.

4. <Public Notice of Performance Assessment of Mr. Tan's Slackness >

[View of Court]

For the disputes caused by employer's decisions such as ouster, dismissal, termination of labor contract, wage deduction and counting method of employment period, employer should have the burden of proof. In this case, the company dismissed Mr. Tan with accusing that he "was slack in work and refused to undertake the reasonable assignment by superior without valid excuse and refused to improve after several reminders". Hence the company should bear the burden to prove Mr. Tan’s misconduct.

Mr. Tan denied the misconduct claimed by the company. Despite the witnesses stated Mr. Tan's slackness in their testimony, the effectiveness of this evidence is weak. Because there is no statement regarding Mr. Tan's rejection of reasonable assignment from his superior; and the witnesses are all current employees of the company and naturally have interest conflict. Furthermore, the witnesses did not present on the court. Also, all evidence paper was supplied by the company without Mr. Tan's signature for confirmation. Based on the foregoing facts, the company failed to complete a valid evidence chain, which means the proof of the misconduct scenario stated in the <dismissal notice> is not sufficient. Therefore, the company shall bear the unfavorable consequence. 

[View of PW & Partners ]

This case is typical for dismissal disputes. And "slackness in work" is the hardest reason to prove. For such case, the court's core inspections will usually on if the company can offer a complete evidence chain. This is also the major barrier to a company when it handles "slackness in work" issues. How to collect evidence effectively? PW & Partners has the following suggestions:

1. Proof of reasonable work arrangement. Various positions have various forms of work assignments, like through WeChat, internal communication tools, mails, written work scheme, shifts chart etc.. When the company finds employee has misconduct of slackness, it must set fix the work assignments content against various work modes and make sure the content is reasonable in respect of work intensity, deadlines and so on.

2. Proof of rejection to work assignment. Employer should define the responding way of work achievement of an employee, such as work report, mail report, initiating contact with superior for report etc.. In case employee fails to report in accordance with the defined responding way, it can be treated as a fact of rejection of assignment at certain rate.

3. Witness's testimony. Witness's testimony has relatively weak proving power, especially from a current employee. But it still has its effect. A good witness's testimony can help the judge have a clear view of the related fact and even could affect the discretionary. In case of using witness's testimony, we would suggest a simulated training by professional attorneys for the witness to improve their capability of testimony and anti-questioning on court.

4. Vocal evidence recording. It's a same old topic to practice. The content of the recording must be able to be heard clearly and completely. For advanced recording effect, employer party can mention about the recording date and purpose as well as the involved parties casually during the talk.