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Negotiation Tips for Termination of Senior Executive’s Labor Contract through Mutual Consultation By David Wang Jingan Yan 2017-12-28

Negotiation Tips for Termination of Senior Executive’s Labor Contract through Mutual Consultation

- Comprehensive discussion from the perspectives of corporate law, labor law and negotiation psychology

 

 

 
 
 
 

公司与高管人员的劳动合同的解除与普通员工相比,有其非常特殊的地方,因为公司高管承担着公司管理的职责,掌握着公司的很多信息和资源,其离职交接手续办理不当的话,会严重影响到公司的日常经营。同时,高管的职位常常高于企业的HR,工作经验丰富,人际交往能力很强,对于企业HR来说,与其协商解除谈判不是一件容易的事。做好高管协商解除的工作,需要从公司法和劳动法两个层面综合考虑,甚至还要考量公司高管可能的心理因素和情感,方能达到双赢的目标。笔者根据自己的实务经验,略作指引,权当抛砖引玉。

 

Termination of senior executive’s labor contract is quite special as compared to termination of normal employee’s labor contract, as the senior executive of the company assumes the management responsibility of the company and takes possession of a great deal of information and resources of the company.  In case the dismissal and handover procedures for senior executive are improperly handled, it will seriously affect the daily operation of the company.  Meanwhile, it is not easy for company HR to negotiate the termination of labor contract with senior executive since the senior executive is often in a higher position than company HR and has rich working experience as well as strong interpersonal skills.  In order to achieve a win-win situation, termination of senior executive’s labor contract through mutual consultation (hereinafter referred to as “Termination through Mutual Consultation”) requires comprehensive consideration from both corporate law and labor law, and even the senior executive’s possible psychological factors and emotions. The following brief guideline is based on our team’s practical experience and we welcome more valuable advice from the readers.

 
 
 
 
 

 

一、如何制定高管协商解除的补偿方案

 

How to formulate the senior executive’s compensation plan for termination through mutual consultation

高管补偿方案制定,有两个最基本的门槛,离职补偿金给还是不给,封顶还是不封顶。对于存在合规问题的高管(例如接受供应商贿赂等违规行为),公司在做出解除决定之后,可能会根据违纪严重程度、证据的充分程度、高管的配合程度、对公司造成的损害程度,以及公司法律风险偏好的程度,决定是否要给予离职补偿。如果选择给,因为一般高管的薪水偏高,超过《劳动合同法》项下规定的补偿金计算标准的上限,公司可以选择严格按照法定标准封顶计算,也可以选择按照高管的实际工资收入进行计算,两者之间可能存在巨大的差异,这一决定如何做出可能取决于公司惯例、所在行业的普遍做法和双方的协商情况等。

Formulation of compensation plan for senior executive is subject to two basic thresholds, i.e. whether any severance payment shall be made and whether the monthly average salary of senior executive shall be capped for purpose of calculation of severance payment.  For senior executive with compliance issues (such as accepting suppliers’ bribery or other violation of relevant rules), after the company resolves to terminate the labor contract with such senior executive, it will take a variety of factors into consideration when deciding whether to offer any severance payment, e.g. the severity of the violation, the sufficiency of evidence, the extent of cooperation by the senior executive, the degree of damage caused to the company and the extent of company’s tolerance to legal risks.  If the company decides to offer severance payment, considering the fact that the salary of senior executive is generally higher than that of normal employees and exceeds the upper limit for the calculation standard of severance payment set forth under the PRC Labor Contract Law, the company may choose to calculate the amount of severance payment in strict accordance with statutory standard, or based on the senior executive’s actual salary.  There may be a big gap between these two calculation results.  And the company’s such decision may depend on company’s practice, the prevailing practice in the industry, both parties’ negotiation and etc.

 

在确定上述两个基本门槛后,如何确定高管离职补偿金的具体金额,是非常个案化的判断,很难用统一的法律标准去量化,我们不妨转换思路从流程的角度进行探索。

After the company’s decision on the above two basic thresholds, the exact amount of severance payment for the senior executive should be judged on a case-by-case basis, and can hardly be quantified by a unified legal standard.  However, we may try to explore this topic from a process perspective.

 

《说服的必要艺术》[1]一文提及,“说服对方是个过程,而不是一次性事件。通常,说服对方的过程包括倾听、初步测试立场、在收集团队意见的基础上设计新的立场、再次测试、接受一定的妥协并再次尝试。”

The article named “The Necessary Art of Persuasion” mentioned that “Persuasion is a process, not an event. More often than not, persuasion involves listening to people, testing a position, developing a new position that reflects input from the group, more testing, incorporating compromises, and then trying again.”

 

同理,补偿方案的设计和形成并不必然是一次性完成的,可能需要征求多方的意见,通过多个步骤来完成。在此假设公司需要与一位涉嫌存在利益冲突行为的高管进行谈判,因为对利益冲突的“零容忍”原则,公司已决定解除其职位及劳动关系,但因为未找到确凿的证据,为降低后续诉讼风险,希望能以协商解除的方式进行。此时该如何设计该名高管的离职补偿金?

Similarly, the design and formulation of compensation plan is not necessarily completed at once, but shall be completed through multiple steps by soliciting opinions from different parties.  Assuming the fact that the company needs to negotiate with a senior executive who is suspected of having a conflict of interest with the company, and the company has decided to remove his/her position and terminate the employment relationship with him/her out of the principle of “zero tolerance” for any potential conflict of interest.  However, since no conclusive evidence has been found, the company wishes to terminate through mutual consultation in order to mitigate the follow-up litigation risk.  How to design the severance payment for this senior executive at this point? 

1.倾听员工意见、收集信息

首先,对于公司调查到的利益冲突的事实与信息,员工是否认可?是否有需要补充或者解释的内容?这通常可以由合规调查部门通过与员工面谈的方式进行。对于员工提供的新信息,公司可以进行核实并做出进一步的调查,并确认是否需要改变之前的立场和判断。

Listening to Employee’s Opinions and Collecting Information

First of all, we need to consider whether the employee acknowledges the fact and information related to the conflict of interest discovered by the company and whether there is anything that needs to be supplemented or explained by such employee. This can usually be accomplished by the compliance department through employee interviews. For new information provided by the employee, the company may conduct verification, make further investigation and confirms whether it shall change its previous position and judgment.

 

2.收集团队意见

根据笔者涉外为主的业务经验,一般制定补偿方案需要征求意见的团队成员包括总部联系人、HR、法务/外部律师及工会。总部联系人一般会决定公司可以接受的预算范围。HR需要提供计算离职补偿金相关的信息和数据,例如该高管过去一年的平均工资,工作年限;是否存在未休年休假,未支付的加班工资等;是否按比例支付十三薪;以及是否存三期女员工或者同时担任工会、党委领导等特殊情形。法务/外部律师主要负责判断法律风险,尤其是如果协商不成,高管提起诉讼,公司败诉风险有多大;如果败诉,公司需要支付的经济成本是多少,以及是否可以避免恢复劳动关系等。败诉风险的评估从谈判学的角度而言,是对公司协商解除谈判不成的BATNA的评估。BATNA,即Best Alternative to a Negotiated Agreement,意为假如目前的谈判交易不成,一方可以采取的“最佳替代方案”。BATNA的优劣直接决定了谈判一方的强势程度,因此这一步骤必不可少。最后,在一对一协商解除前提下,法律并不要求取得工会对高管离职补偿方案的同意。但是如果工会对高管的实际情况比较了解,也可以考虑倾听工会意见,但需要注意信息的保密问题。

Collecting opinions from the team

Based on our team’s foreign-related practical experience, formulation of compensation plan generally requires soliciting opinions from at least four groups of team members, i.e. contact person from headquarters, HR, in-house/external lawyer and the trade union. Contact person from headquarters will generally decide the range of budget payable by the company.  HR needs to provide information and statistics related to the calculation of severance payment, such as the average salary of the senior executive for the past year; service years of the senior executive; whether there is untaken annual leave and unpaid overtime payment; whether 13th month salary shall be paid on a pro rata basis; whether there is any special situation such as the senior executive is still in lactation period or he/she also serves as the leader of the trade union or Party committee. In-house/external lawyer is primarily responsible for judging the legal risk if no agreement has been reached by the parties through negotiation, especially company’s risk of losing the lawsuit in case the senior executive sues the company after termination; and in case the company loses the lawsuit, in-house/external lawyer needs to consider the economic cost that the company needs to bear and whether the resumption of employment relationship can be avoided and so forth.  From the perspective of negotiation, the assessment of the risk of losing the lawsuit is an assessment of BATNA (Best Alternative to a Negotiated Agreement), i.e., the best alternative which may be taken by the company if the company fails at the negotiate table. The advantage and disadvantage of BATNA directly decides the bargaining power of a party on the negotiation table, thus such step is quite essential.  Finally, under the PRC law, the consent of the trade union to the compensation plan of the senior executive is not required in the event of termination through mutual consultation.  However, if the trade union knows the situation of the senior executive very well, the company may also consider listening to the trade union’s opinions, provided that the company shall take care of the confidentiality issue.

 

3.立场测试与锚定

无论与高管的协商解除谈判是一次或者多次面谈,一次面谈是半小时还是一整天,基本都会经过如下步骤:(1)了解员工的心理预期(Aspiration),他的预期通常会基于其所了解的信息作出(例如他对相关法律规定的理解,对自己BATNA的判断,对同行业其他企业操作惯例的了解,对公司文化的判断等);(2)向员工告知公司的立场(解除其高管职务及劳动关系)以及做出立场的原因(对利益冲突行为的零容忍态度);(3)向员工解释离职补偿方案的构成及其合法合理性;(4)回答员工可能的问题;(5)通过多种手段进行锚定(Anchor)。锚定是指在谈判过程中采取一些措施降低对方原来设定的预期,使谈判结果更靠近我方的预期。锚定的方法包括但不限于纠正员工原先了解的信息中不准确或不完整的部分,引入更客观公正的基准,向员工传达公司在必要时将采取单方解除行为的意愿等等。

Test of Position and Anchor

No matter the company negotiates with the senior executive for once or for multiple times, and no matter the negotiation meeting lasts for only half an hour or a whole day, generally, the following steps shall be followed: (1) Understanding the employee’s aspiration; his/her aspiration is usually based on the information he/she knows (such as his/her understanding of relevant laws and regulations, his/her judgment on BATNA, his/her understanding of operating practices followed by other companies in the same industry, his/her judgment on company culture and etc.); (2) Informing the employee of the company’s position (removal of his/her senior executive position and termination of employment relationship with him/her) and the reason for the company’s position (zero tolerance for conflict of interest behavior); (3) Explaining to the employee the composition of the compensation plan as well as its legality and rationality; (4) Answering possible questions from the employees; (5) Anchor through various means. Anchor refers to taking some measures during the negotiation process to lower the aspiration originally set by the other party and to pull the negotiation result closer to our own aspiration.  Methods of anchor include but not limited to rectifying any inaccurate or incomplete information previously known by the employees, introducing more objective and fair benchmarks, demonstrating the company’s willingness to unilaterally terminate the labor contract with the employee if necessary, and so forth.

 

4.黄金之桥

在双方谈判过程过度焦灼、僵持不下的情况下,即使目前的谈判结果已经落入双方的ZOPA(即Zone of Possible Agreement,谈判成交区间),出于面子的问题,双方也未必能马上成交。为解决这一问题,在适当的时机,谈判一方可以主动做出一定的妥协,让对方觉得取得了“胜利的果实”,并顺着这一“黄金之桥”走下来结束整个谈判过程。笔者一直强调,劳动法的特殊之处在于讲究人情。即使是涉嫌重大利益冲突而导致的协商解除,在谈判过程中考虑人情的部分也不为过,例如员工的家庭背景因素(例如是否是家庭唯一经济来源),未来的职场发展因素等。虽然补偿金额本身是双方谈判的关注焦点,但一场谈判中,双方的利益一般不仅限于金钱本身。所以最后一步的妥协可以是金钱上的增加,也可以是满足员工关心的非金钱利益(例如就公司在收到未来雇主的背景调查时如何给予答复进行协商)。另外,在谈判僵持不下的时候,变更主谈人,例如从公司内部人员转变为外部律师,也可以有效地解决僵局。

Golden Bridge

In case the negotiation between both parties becomes extremely adversarial or comes to  a deadlock, even if the current negotiated result has fallen into both parties’ ZOPA (i.e., the Zone of Possible Agreement), the parties may not necessarily close the deal immediately due to face-saving issue. To solve this problem, either party to the negotiation may take the initiative to make some compromise at a proper time so that the other party will feel like achieving the “fruit of victory” and put an end to the negotiation process by crossing this “Golden Bridge”.  We keep emphasizing that the labor contract law is special in that it embraces the wisdom of dealing with human relationships.  Even if the termination through mutual consultation is caused by suspected serious conflict of interest, the human relationship part can still be considered, such as employee’s family background (e.g. whether he/she is the sole bread-earner in the family), the employee’s future career development.  Although the amount of compensation is the main focus of the negotiation by both parties, the interests of both parties are not generally limited to money alone.  Therefore, the final compromise can be a monetary increase or satisfaction of certain non-pecuniary interest the employee cares about (for example, the company may negotiate with the employee on how to respond to the background check to be sent by the employee’s future employer).  Moreover, when the negotiation comes to a deadlock, changing the major negotiator, such as changing from internal personnel to external lawyer, may also effectively resolve the deadlock.

 

二、高管的自我认知对协商解除谈判的影响

 

The Impact of the Self-Identity of Senior Executive on the Negotiation of Employment Termination

对于高管的协商解除,还需要特别注意一个心理学的重要概念,即Self-identity(自我认知)。牛津词典对Self-identity的定义是指一个人对自我的潜能和品质的认知,尤其是在社交环境下的认知。高管较之普通员工,因为长期以来成就感较强,社会地位较高,他们为维护自己在社交环境下为自己设定的Self-identity(例如“我是受他人尊敬的人”,“我在行业内是知名的大佬”等),可能是会愿意付出相当惊人的代价。所以我们可以看到有些高管,即使公司给出了相当合理甚至丰厚的离职补偿金,仍予以拒绝,甚至不计时间与金钱成本与公司在法庭或其他场合“死磕到底”,也许就是因为公司在某些方面的评判触痛了他的自我认知。因此,公司在协商解除的过程中,一定要对于高管的自我认知保持充分敏感。最简单的一个例子是,如果协商解除的对象是公司的董事长、总经理,除了公司的HR之外,总部一般还会派一名集团高管,例如亚太区法务或者业务主管与其进行协商谈判,至少让公司高管觉得在谈判对手的设定上充分尊重了他/她。

When it comes to terminating through mutual consultation, special attention shall be paid to an important concept in psychology, i.e. self-identity. The definition of self-identity in the Oxford Dictionary is “The recognition of one's potential and qualities as an individual, especially in relation to social context.”  Compared to average employees, a senior executive has long enjoyed a strong sense of achievement and high social status, therefore he/she might be willing to pay a considerable price in order to defend his/her self-identity in the social context (e.g. “I am a respectful person” or “I am a renowned mogul in the industry.”).  Hence it is not uncommon that some senior executives refused to accept very reasonable, or even very generous, severance payment offered by companies, and chose to fight with the companies at courts or other occasions by investing great amount of time and money.  That is probably because their self-identities are somewhat offended by the companies’ certain judgments and comments on them.  Therefore, when negotiating a termination, the company should keep sufficiently sensitive to the self-identity of a senior executive.  As an obvious example, if a company’s chairman of the board or a general manager were to be terminated, apart from company HR, one representative from headquarters, such as a general counsel or business leader covering the whole Asia-Pacific region, will be invited to attend the negotiation as well, which at least show the company’s respect to the senior executive when choosing his/her negotiation opponent. 

 

三、高管解除在中国法下的实务操作要点

 

Some key practical tips for the termination of senior executive’s labor contract under the Chinese Law

最后,公司高管(尤其是法定代表人)掌握着公司日常经营的控制权。在公司启动解除谈判流程之前,必须做好充分的前期准备,确保高管离职的同时完成必要的交接工作,否则会造成后续公司日常经营的混乱。例如,笔者曾经碰到一个外资客户,自行通知解除了公司的法定代表人,但该法定代表人接到通知后,拿走了公司的公章和所有证照原件,去向不明。在没有法定代表人签字,没有公章的情况下,要与政府部门沟通补办公司的证照是非常困难的,导致这家公司的日常经营活动在很长时间内陷入了困境。

Last but not least, senior executives (especially the legal representative) have control of the company's day-to-day operations.  Thus, before starting the termination negotiation process, the company shall conduct sufficient preparation work in order to ensure that the executive will complete all the necessary handover work before leaving the company, otherwise it might cause a lot of problems to companies’ daily operations.  For example, one of our foreign clients once terminated the legal representative of its Chinese subsidiary by notice without consulting our opinion first.  Upon receiving the notice, the legal representative took away the company's official seals and the original copies of all company licenses and certificates and disappeared. Without the legal representative’s signature or the company seal, it was extremely difficult for the company to communicate with various government departments for re-issuance of its business license and other certificates, which caused tremendous problems for the company’s operations for a long time. 

 

根据笔者的实务经验,建议公司在解除谈判前做好以下几方面的准备工作:

Based on our team’s practical experience, we suggest that companies shall consider the following matters before starting the termination negotiation:

1. 确保高管交还由其保管的公司公章、财务章等各类印章;

Make sure that the senior executive returns the company seal, the financial seal and all other seals that are in the senior executive’s possession;

2. 确保高管交还营业执照、批准证书等各类公司证照原件;

Make sure that the senior executive returns the original copy of the business license, certificate of approval and all other company licenses and certificates;

3. 确保高管担任的一些管理职位(如董事、CEO、CFO等)将根据公司法、公司内部章程的规定完成免除手续;

Make sure that the management positions held by the senior executive (such as director, CEO and CFO, etc.) have been properly removed pursuant to applicable procedures under the corporate law and the company bylaws;

4. 准备好因高管离职需签署的所有政府申报、银行方面所需的手续性文件,例如变更在工商登记的法定代表人、董事、监事、总经理所需签署的文件,变更银行授权签字人所需授权文件等,供谈判达成后立即或尽快签署;

Prepare all the procedural documents necessary for government and bank filings which are required to be signed by the senior executive due to his/her removal, for example, the application documents that are required for the change of legal representative, directors, supervisors and/or general manager of the company that are registered with AIC, as well as authorization documents needed for changing the authorized signatory of the company at banks.  These documents shall be signed by the senior executive at the conclusion of the negotiation or as soon as possible thereafter;

5. 确保高管交还公司电脑、手机、门卡、汽车、银行账户U盘等公司财物及其相关密码,并应制作相关的物品交接清单。

Make sure that the senior executive returns all the company properties such as company computer, company cell, door cards, automobiles, bank accounts, U-disks and etc., as well as access codes to such company properties, and to make a handover list for these properties. 

 

在实践中,为确保高管切实履行上述义务,公司可以将离职补偿金的支付与其履约义务相挂钩。

As a practical matter, in order to ensure that the senior executive effectively performs the above obligations, companies may set the performance of these obligations as a pre-condition for payment of the executive’s severance payment.  

 

同时,高管也掌握着公司大量的商业秘密(包括但不限于公司的经营战略计划、分销渠道、客户名单、产品价格等),在与其签署的协商解除合同中,应明确其承担的保密义务、竞业限制义务和不诋毁、不招揽义务的范围及其违约责任。

Meanwhile, the senior executive has access to a great deal of company’s business secrets (including but not limited to the company's business strategy plan, distribution channels, customer list, product prices and etc.).  Hence, in the negotiated termination agreement, the company should specify the senior executive’s scope of obligations for confidentiality, non-compete, non-defamation and non-solicitation, as well as his/her liability for breach of such terms. 

 

另外,一般高管解除涉及的离职补偿金金额都较高,员工承担的税务较重,如何进行税务筹划是大部分高管员工比较关心的话题,如果公司能够在合法合理范围内帮助员工降低税负,也可以有效地促进和解。

In addition, considering the fact that the amount of severance payment paid to the senior executive is often very large, the employee usually bears heavy tax burden. Therefore, most senior executives are very interested in advantageous tax planning.  If the company is willing to legally and reasonably help senior executives to reduce their tax burden, it can also effectively push forward the negotiation process.  

 

综上,公司与高管协商解除劳动合同是一个非常考验谈判者多项综合素质能力的实务。对公司而言,无论是所涉离职补偿金的金额,还是对日常公司经营的影响,都事关重大,建议在法律专业人士的支持下进行谨慎而周密的事先准备。

Above all, termination of senior executive through mutual consultation is a practice that tests a variety of comprehensive qualities and abilities of the negotiator. Meanwhile, it is also of great importance to the company not only in the respect of the amount of severance payment but also in the respect of its impact on the company’s daily operation, so it is advised that the company shall make careful and thorough preparation in advance under the assistance of the legal professionals.

 

注:

[1] Jay A. Conger, 《说服的必要艺术》,《哈佛商业评论》,1998年5月/6月卷,第84页

Jay A Conger, “The Necessary Art of Persuasion”, “Havard Business Review”, May/June Volume of 1998, P 84

 
 

 

特别声明:

以上所刊登的文章仅代表作者本人观点,不代表北京市中伦律师事务所或其律师出具的任何形式之法律意见或建议。

 

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