analysis of the case in which a kindergarten principal in chongqing was fired for accepting 6 yuan of chocolates and was not beyond the standard of being a kind person and the scope of public tolerance
2024-09-18
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comics/takayama
our reporter wu xiaofeng and zhan haifeng
the former head of the kindergarten, wang, was transferred to another position by the kindergarten board of directors for accepting chocolate worth 6 yuan from a child. wang refused the transfer and the kindergarten board of directors dismissed him. wang sued the kindergarten in the jiulongpo district people's court of chongqing, claiming that the dismissal was illegal.
the jiulongpo district court held at first instance that the kindergarten had a transfer talk with wang and wanted to adjust him to a small class teacher, but when the two parties failed to reach an agreement, it was obviously not prudent to directly exercise the right to terminate the employment. the court determined that the kindergarten's termination was illegal and that it should pay compensation to wang.
the kindergarten was dissatisfied with the first-instance judgment and filed an appeal. recently, the fifth intermediate people's court of chongqing rejected the appeal and upheld the original judgment.
the headmaster was punished by public notice for accepting snacks
the first instance court found that the kindergarten was a private non-enterprise unit that had been approved and registered and obtained legal person status. the organizer was chen, who established a board of directors.
wang had signed a labor contract with the kindergarten, stipulating that the contract term was fixed, from september 1, 2019 to august 31, 2021, and party b's job position was deputy director. later, the two parties renewed the labor contract, extending it to an indefinite-term labor contract, and wang also began to serve as the director.
the labor contract between the two parties stipulates that if party b seriously neglects his duties, engages in malpractice, and causes significant damage to party a, party a may terminate the labor contract.
on september 15, 2023, the kindergarten issued a disciplinary announcement stating that wang, as a manager of the kindergarten, accepted gifts from parents and children on the eve of teachers' day in 2023, which violated the relevant regulations issued by the ministry of education. as a kindergarten manager, he did not play a leading role, and the act of accepting gifts also led to the rejection of the key indicators of the kindergarten in the 2023 kindergarten supervision and evaluation. the kindergarten board of directors made an internal transfer to wang, and chen talked with wang to express the board's opinion on the handling, and transferred him to a branch kindergarten as the principal or continued to stay in the kindergarten as a small class teacher, but wang refused both.
the board of directors held a meeting and decided: wang was expelled in accordance with the labor contract; the kindergarten assessed wang as unqualified in the 2023 annual assessment of the national teacher system, and the reason for the failure was accepting gifts from parents and children.
termination of labor contract if job transfer fails
on september 21, 2023, wang applied for arbitration to the local labor and personnel dispute arbitration committee regarding disputes such as the termination of labor relations, with the kindergarten and chen as respondents. the committee issued a "certificate of failure to accept a case within the time limit" on september 28, 2023, and wang then filed a lawsuit with the jiulongpo district court.
during the trial of the case, the surveillance video provided by the kindergarten showed that on the morning of september 8, 2023, wang and other teachers were conducting morning inspections at the kindergarten gate. a child in the kindergarten handed a plastic food bag to wang. wang put the food bag on the table next to him, and the child took the initiative to hug wang.
wang stated that he and the child's father had been friends for many years and that the child was not wang's student. the child gave wang chocolate that day, which was worth 6.16 yuan, and was distributed to the child and other teachers on the same day.
the kindergarten said that wang accepted gifts from children, which violated relevant regulations of the ministry of education. the kindergarten then had a talk with him and considered transferring him to another position, but the two parties failed to reach an agreement. after research, the kindergarten's board of directors agreed to terminate wang's labor contract.
wang presented a video, which showed that during the parent-teacher meeting of the kindergarten, parents of students asked the kindergarten to explain the termination of wang's labor contract.
the kindergarten and chen acknowledged the authenticity of the video, but believed that it could prove that wang accepted gifts. they also presented the court with the kindergarten's relevant rules and regulations.
the court held that the legal rights and interests of workers are protected by law. the court confirmed that wang had a labor relationship with the kindergarten, as evidenced by the labor contract. both parties had no objection to the termination of the labor relationship, and the court confirmed it.
the court determined that the termination constituted illegal
during the trial, whether the kindergarten constituted illegal termination was one of the controversial issues in this case.
the court held that, according to the disciplinary notice issued by the kindergarten to wang, the basis for terminating the labor contract was that wang had accepted gifts from students, which violated the labor contract between the two parties, that is, serious dereliction of duty, malpractice for personal gain, and caused significant damage to the employer, and the decision was made by the kindergarten's board of directors. therefore, to determine whether the kindergarten constituted an illegal termination, the following factors should be considered.
first, whether wang has committed serious dereliction of duty or malpractice for personal gain. the court held that as the principal of the kindergarten, wang had the responsibility to manage the kindergarten, and implementing the various regulations of the ministry of education on kindergarten management should be one of his job responsibilities. the relevant normative requirements, employee oaths and evaluation forms had been informed to wang, and they could be used as the basis for regulating the rights and obligations of both parties. the ministry of education stipulates that it is strictly forbidden to ask for or accept gifts, cash gifts, securities, payment vouchers and other property from students and parents in any way. in serious cases, the teacher shall be expelled in accordance with the law and regulations, and his teaching qualifications shall be revoked.
but at the same time, respecting teachers and valuing education is also our fine tradition. from the surveillance footage, we can see that the child gave the chocolate to wang in a public place, at the entrance of the kindergarten. then the two sides hugged each other to express their gratitude and the child left happily. it can be seen that the kindergarten children expressed their love and respect for the teacher by sharing snacks, which also shows the transmission of love between teachers and children. for kindergarten children, the psychology of giving a piece of chocolate is simple and innocent, without the subjective intention of exchanging interests. it is different from giving gifts, cash gifts, securities or payment vouchers and other property. it is not appropriate to characterize this behavior as accepting gifts and cash gifts from students and parents, nor can it be determined that wang used his position to seek personal gain through improper means.
the court held that: "even if the kindergarten believed that wang's taking snacks from children was improper, considering the value of the snacks and the fact that wang shared them with other children, his behavior did not reach the level of serious dereliction of duty or malpractice, nor did it exceed the standard of ordinary kind people and the normal tolerance of the public."
secondly, whether wang caused significant damage to the unit. the court held that the kindergarten claimed that the ministry of education's supervision and evaluation included an assessment of the childcare staff's non-demanding or accepting of property in the past year, and the education department gave the kindergarten a verbal warning to rectify the situation. in this regard, it did not provide corresponding evidence. even if there was a rectification or unsatisfactory supervision, the kindergarten did not provide evidence to prove the causal relationship between the result and wang's behavior, and the significant damages claimed by the kindergarten were not recognized.
in addition, in this case, the kindergarten stated that it had not yet established a trade union, but the termination of the labor contract should still inform and listen to the opinions of the employee representatives. there were flaws in its labor contract termination procedures.
the court ruled to confirm the termination of the labor contract between wang and the kindergarten; the kindergarten was required to pay the plaintiff wang 71,500 yuan in compensation for illegal termination of the labor contract within 10 days from the date the judgment came into effect; the kindergarten was also required to pay wang a salary difference of 5,626 yuan and an enrollment commission of 5,000 yuan.
the kindergarten was dissatisfied with the first-instance judgment and filed an appeal. recently, the fifth intermediate people's court of chongqing held that the first-instance judgment had clear facts and correctly applied the law, and should be upheld. it rejected the appeal and upheld the original judgment.
don’t label children’s innocence
liu fashuang, a member of the chongqing lawyers association's labor and social security committee and a partner at shanghai zhonglian (chongqing) law firm, said: "the kindergarten made the decision to terminate the labor contract for two reasons: first, the former principal accepted gifts from parents and children; second, the former principal's behavior led to the rejection of key indicators of the kindergarten's supervision and evaluation."
liu fashuang believes that although the ministry of education has expressly prohibited teachers from abusing their position to solicit or accept in any way gifts, cash gifts, securities, payment receipts and other property or other improper benefits from students and parents, the facts of this case show that the former principal accepted chocolates (worth 6.16 yuan) that were voluntarily handed to him by a child. there is no evidence to show that he took advantage of his position to solicit them, nor was it an improper benefit in the popular sense. there is even less evidence that it has had any adverse effects or consequences on the education system or order, and it is difficult to define it as "unhealthy practices."
"on the contrary, when children give chocolates to teachers on the eve of teachers' day, it is to express their holiday wishes to teachers on the one hand, and to express their love and respect for teachers on the other hand. it is a way for children to express their feelings. it is not appropriate to make a negative evaluation of the teacher's acceptance behavior too strictly, and it is not appropriate to be too harsh or mechanically understood as a violation of the regulations of the ministry of education." liu fashuang said that in addition, in the absence of evidence to prove that there is a causal relationship between the former principal's behavior and the negative evaluation of the supervisory evaluation, it should not be considered as "serious violation of discipline", "serious dereliction of duty" and "malpractice for personal gain" stipulated in the labor contract law. therefore, when an employer exercises the right to terminate a labor contract, in addition to considering laws and industry regulations, it should also consider and analyze the worker's willingness to act in a certain manner based on the specific circumstances, and whether it conforms to simple humanism and the scope of daily reasonable cognition.
liu fashuang believes that we should not label children’s behavior when they express their kindness and childlike innocence. otherwise, we will not only hurt the children’s feelings, but also bear legal responsibility.
source: legal daily
