★ Case Introduction
Wang is a project manager at a company in Shanghai. According to the rules and regulations, employees are required to clock in and check in daily on the company’s WeChat account, and their salary will be paid based on the attendance results.
On August 18, 2023, the company negotiated with Wang to terminate the labor contract. The company’s personnel sent a WeChat message to Wang, stating that due to the negative impact of Wang’s dismissal at the company, he can no longer work and his salary will be settled normally until August 22nd. After receiving WeChat, Wang found that his enterprise WeChat account had been suspended and he was unable to clock in for attendance.
In May 2024, Wang discovered that he had been underpaid for two days in August 2023, and therefore applied for arbitration to the labor dispute arbitration committee in the registered place of the employer, demanding that the employer pay the wage difference. The company argued that the reason for the deduction was that Wang had no attendance records on August 21st and 22nd, and later filed a lawsuit with the court.
★ Judgment result
After the court trial, it was found that firstly, the employee’s failure to attend attendance must have been due to reasons, which could be subjective refusal to attend attendance or objective inability to attend attendance, such as not meeting the conditions for attendance. Wang claimed that the suspension of the enterprise WeChat function was the objective reason for his inability to participate in attendance. Therefore, as the owner and manager of enterprise WeChat, the company has the obligation to provide evidence to explain whether and when Wang stopped using the enterprise WeChat attendance function.
Secondly, not attending attendance does not equate to not being present or working properly, and not working does not necessarily result in the deduction of wages. Only those who fail to attend attendance due to the worker’s unjustified absence from work can be considered as absent without reason and have their wages deducted.
The existing facts indicate that the company admitted in the Civil Complaint that Wang worked until August 22, 2023. And Wang also provided evidence that the personnel required him to work until the morning of August 18, 2023, and not to work again thereafter, but his salary was settled until August 22, 2023. Therefore, the judgment supports Wang’s claim.
★ Comment by Lawyer Tang Yi
The employer shall bear the burden of proof for labor disputes arising from the reduction of labor remuneration by the employer. Therefore, in this case, the company’s deduction of Wang’s salary for August 21st and 22nd should be proven by the company that Wang was absent from work without justifiable reasons. Considering that Wang has provided evidence to prove that the reason for his failure to clock in was due to the company’s closure of his enterprise WeChat account, and the HR department has informed him that he does not need to attend, but his salary will be settled until August 22, 2023. Therefore, the company’s deduction of Wang’s salary for August 21st and 22nd has no factual or legal basis.
Here, we suggest that employers should require employees to explain the reasons when they fail to attend or clock in. Only when employees fail to attend without justifiable reasons can they be considered absent without reason and have their wages deducted. If the employer specifies that the employee is not required to work and is paid wages in the days before leaving, the employer shall not deduct wages for the employee’s absence.
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