★Nutshell
Mr. Tang joined the information company on September 1, 2017.
Both parties entered in a labour contract dated from September 1, 2017 to August 31, 2018. In the contract, it was agreed upon that Mr. Tang would hold the post of project manager, and his salary consisted of the basic salary 3300 yuan, the performance salary 8700 yuan and the welfare 400 yuan.
On November 21, 2017, the company claimed to a district labor arbitration of Shanghai to require Mr. Tang to return his September 2017 performance salary 7623.18 yuan.
The company holds that the fix number of the performance salary agreed in the labor contract is just a calculation base in the performance evaluation. According to the performance evaluation management system, considering Mr. Tang’s job performance and the result of his job performance evaluation, he was not entitled to get the performance salary in that month. Mr. Tang can’t accept such conclusion.
After the arbitration, the company’s arbitration claim was not supported by the labor arbitration. Later, the company claimed to a district court of Shanghai, and then claimed to the Shanghai Municipal First Intermediate People’s Court after losing the lawsuit.
★Judgment
After the trial, the court of second instance rejected the company’s claim. The court thinks that the performance salary agreed in the labor contract is a fixed payment, and there is no term agreed in the contract about the performance salary adjusted or not paid by the performance evaluation result. According to the Article 16 of Interpretation of the Supreme People’s Court on Several Issues about the Application of Laws for the Trial of Labor Dispute Cases (II) : ”When the internal rules and regulations formulated by the employer conflict with the contents stipulated in the collective contract or the labor contract, and the employee requests to give priority to the application of the contract, the people’s court shall support it.” Since the content of performance evaluation management system provided by the company conflicted with the contents stipulated in the labor contract, and Mr. Tang requested to give priority to the application of the contract, it shall be supported.
★Comment by Lawyer Tang
This employment dispute arose from the conflict between the content agreed in labor contract and the company internal rules and regulations. The company internal rules and regulations, and the labor contract, are both belong to the agreements that both parties need to obey in the process of employment relationship. Which one takes priority when their contents conflict with each other is a bone of contention in practice. The Article 16 of the Interpretation of the Supreme People’s Court on Several Issues about the Application of Laws for the Trial of Labor Dispute Cases (II) gives labors the right to choose which one to apply. However, the rank of the company rules and regulations and the agreement in labor contract hasn’t been regulated.
When a labor concludes a labor contract with the company, or sign the company rules and regulations, he should check the content carefully and learn the rights and duties of both parties.
When an Employer formulates, revises or decides on rules and regulations, or material matters, that have a direct bearing on the immediate interests of its Employees, such as those concerning compensation, work hours, rest, leave, work safety and hygiene, insurance, benefits, employee training, work discipline or work quota management, should try not to contradict the labor contract, and remember to fulfilling the duty of informing.
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