Zheng worked as a sales manager at A company that had established a mechanism for preventing workplace sexual harassment, and Zheng had received relevant training.
The company’s “Code of Conduct” stipulated that managers and supervisors “should ensure that subordinates can speak freely and without fear of retaliation, and that all concerns or problems can be professionally and promptly resolved,” and that no retaliatory actions were allowed.
The “Employee Handbook” of A company stipulated that behaviors such as sexual harassment, violation of the company’s “Code of Conduct,” and making false statements during internal investigations were all disciplinary offenses that could lead to immediate dismissal. The above rules and regulations were discussed and approved by the labor union of A company before implementation.
Zheng signed a confirmation acknowledging the above documents, stating that he had read, understood, and agreed to all the documents, and was willing to abide by the company’s policies as a prerequisite for working at the company.
In January 2018, Amy started working in A company. Her supervisor Mike (a sales executive of A company，married) sent her sexual harassment messages Amy showed all screenshots to Zheng, however Zheng replied: “I just don’t want to get involved in this” . Both Mike and Amy are Zheng’s subordinates.
In August 2018, Zheng had a conversation with Amy after he observed the strained relationship between Amy and Mike.
During this conversation, Amy emphasized that Mike had sexually harassed her, and continued to harass her after she refused. Zheng should not blame her for her attitude, the only reply she got from Zheng is, “If you work like this, it makes me very sad.”
In November 2018, Zheng asked the HR of A company to terminate the labor contract with Amy, claiming Amy is lack of sociability, but failed to provide any further explanation. When the HR inquired into the situation, Amy explained that Mike sexually harassed her, and Zheng had intentionally or unintentionally played a role in facilitating Mike’s behavior, she had suffered retaliation.
Two months later, A company conducted an investigation into Zheng and produced an investigation transcript. Regarding the question of whether a female employee had reported to Zheng about Mike’s inappropriate remarks or sexual harassment, Zheng’s response is “no.”
One week later, A company issued a “unilateral termination letter” to Zheng, citing Zheng’s failure to fulfill his managerial duties by not taking any measures to help his subordinates after they reported being harassed by an superior and instead retaliating against his subordinates. The termination was also based on Zheng’s false statements made during the investigation process.
Zheng subsequently applied for labor arbitration to demand that the company pay him compensation of 368,130 RMB for the unlawful termination of his labor contract. However, his request was rejected by the Labor Arbitration Committee and again, rejected by the court.
The court held that:
Firstly, according to the evidence in the case, both the Employee Handbook and Code of Conduct were discussed and approved by the company’s labor union, and Zheng had signed a labor contract with the company that clearly stipulated that both documents were part of the labor contract and binding on Zheng, who had read, understood and accepted the above internal regulations.
Secondly, Zheng claimed that Amy did not provide solid evidence of harassment, making it difficult to tell the truth. However, the telephone recording provided by Amy showed that Zheng had admitted that the relevant WeChat message was not normal communication between colleagues. Despite Amy’s repeated emphasis on being harassed, Zheng did not actively respond to help resolve the issue, but rather thought that Amy was not friendly and intended to terminate Amy’s labor contract. The company’s assertion that Zheng retaliated against Amy is a reasonable inference.
Finally, Zheng made false statements during the company’s internal investigation and denied that Amy had been sexually harassed.
Therefore, the court held that the company’s claim that Zheng had committed serious violations was well-founded, and on this basis, the termination of the labor contract with Zheng did not constitute illegal termination. The appeal was dismissed, and the original verdict was upheld.
Our takeaway message:
Management personnel of the employer should take reasonable measures to handle complaints from employees who have been sexually harassed. If the management personnel fail to take reasonable measures or engage in conduct that condones sexual harassment, interferes with an investigation into sexual harassment, etc., and the employer terminates the labor contract on the grounds that the management personnel failed to fulfill their job responsibilities and seriously violated regulations, the court will not support the management personnel’s claim that the termination was illegal.
Suggestion from us:
A. How can employers effectively prevent workplace sexual harassment?
1. Refine the internal regulations to include provisions on workplace sexual harassment.
Employers can clearly define “sexual harassment” as a serious violation in the internal regulations, refine the behavior and specific manifestations of sexual harassment, make sexual harassment behavior one of the grounds for terminating a labor contract. (You may check our previous post: The Significance of an Employment Handbook: A Comprehensive Analysis for more information. )
2. Clarify the job responsibilities of relevant management personnel.
The internal regulations should clearly define the job responsibilities of relevant management personnel. Once a report involving sexual harassment is received, timely follow-up investigations should be conducted, and evidence should be collected and preserved, including but not limited to employee statements, WeChat messages, emails, text messages, chat records, monitoring videos, police reports, and witness testimony. It should be made clear that retaliation against employees is not allowed and that the consequences of failing to fulfill job responsibilities should be clearly stated.
3. Conduct internal education, publicity, and training on preventing and treating workplace sexual harassment.
Employers can conduct continuous education and training through offline lectures, online meetings, etc., to ensure that employees are aware of the company’s internal regulations on prohibiting sexual harassment. Regular training and lectures should be provided to employees to enhance their awareness of the prohibition of sexual harassment.
4. Establish a sound complaint channel.
Establish a special institution or committee to receive complaints or reports of workplace sexual harassment, define the specific responsibilities and processing procedures of the said institution, and stipulate the processing deadline. To facilitate employees’ complaints and reports, hotlines, fax machines, and dedicated mailboxes should be set up.
B. How can employees protect themselves against workplace sexual harassment?
1. Preserve evidence in a timely manner.
Use audio recordings, video recordings, chat records, etc., to preserve evidence of harassment.
2. Report to the employer in a timely and comprehensive manner.
Employees who have been sexually harassed should report the incident to their employer in a timely and comprehensive
