Jack Wolfskin, Complaint 790

CONCERNING LABOUR STANDARDS
Legally binding employment relationship
STATUS
Closed
DATE
2019-09-27

A cleaner from a supplier from Jack Wolfskin complained to Fair Wear that the factory illegally terminated the working relationship with him.
He was injured accidentally (not work injury) and received a surgery from a local hospital to remove the fixator from his injured leg in June 2019. On 19 June 2019, he applied for sick leave from the factory for one month, but somehow the HR department wrongly wrote the reason for the leave was personal leave instead of sick leave, to which he did not pay attention at that time.
After the surgery, the doctor suggested him to rest for three months for better recovery. After the one month of leave, the cleaner was afraid of losing his job, therefore, his wife helped him as a replacement to do the cleaning at the factory and his wife told the HR that the doctor suggested her husband to rest for three months before returning to work. The HR supervisor verbally informed her that it was okay as long as her husband would come back to work before October 2019.
However, at the beginning of September 2019, the factory called the complainant to inform he was terminated due to the violation of the company’s policy on leave.
The complainant stated all due wages were paid to him by the factory, however, he cherished the job opportunity at the factory and still hoped management could let him continue to work. Therefore he sought support from Fair Wear.

Overview of the complaint investigation

2019-09-27 Investigation

Fair Wear informed Jack Wolfskin of the complaint and asked the to follow up with the factory. As such, Jack Wolfskin asked the factory for their point of view on the situation and to provide the conditions under which they would reinstate the worker, or if they were not going to, to provide Jack Wolfskin with an explanation of this decision.

2019-10-10 Investigation

The factory responded that the complainant was injured prior to joining the company, and asked for 15 days personal leave in mid-June 2019 while he/she underwent surgery. According to the factory, the worker continued to extend this period of leave until, in September 2019, the HR supervisor at the factory informed him/her that it would not be possible to keep the role open any longer. It was communicated that if a vacancy would be available when he/she was fully recovered then they would re-employ the worker.

The factory told Jack Wolfskin that they were currently not prepared to re-employ the complainant. The reasons they stated for this was that the worker was not fully recovered to carry out tasks required for the role and that while the worker was on extended leave, the factory had hired another cleaner. The factory claimed that it would be illegal for the factory to terminate the new cleaner's contract.

2019-10-15 Conclusion of the investigation

There was sufficient evidence found for this case to be considered grounded, despite some discrepancies on both sides.

2019-10-16 Remediation

Because the factory re-hired this position, it was impossible for the complainant to return to work. Therefore, Fair Wear recommended that the complainant be paid a severance pay of one month minimum wage, as the worker was forced to resign and legally has a right to this. In addition, the worker should also be paid one month minimum wage per month of sick leave as well, as the worker was indeed sick and in recovery.

Fair Wear asked Jack Wolfskin to reach out to the factory to help this worker.

2019-10-17 Investigation

Jack Wolfskin reached out to both the factory and Fair Wear to establish whether the doctor had recommended three months of leave, and if so, whether they had provided a sick note. Jack Wolfskin also enquired why the worker took personal and not sick leave, and asked if his/her personal leave was paid or not.

In response, the factory claimed the complainant had not followed the correct process of requesting leave.

Jack Wolfskin also made an enquiry as to why the replacement cleaner was not hired on a temporary contract. They also requested supporting evidence from the factory such as pay slips prior/post operation and a letter showing the termination of the worker's contract.

2019-10-18 Investigation

Fair Wear reached out to the complainant who claimed that while he/she did request one month 'sick leave' the factory made an error, and mistakenly filed his/her application as 'personal leave'. However, the worker did not notice this error at the time.
Fair Wear recommended that the worker return to the doctor to gain a letter confirming his/her required sick leave as he/she did not have one before.
The worker responded to Fair Wear stating he/she did not receive any written termination letter from the factory, that he/she is fully recovered and is wanting to work at the factory once more.

2019-10-31 Investigation

The factory corresponded with Jack Wolfskin, claiming that according to factory employee handbook, an employee must provide a doctor's note should they request more than 3 days sick leave, which despite being advised otherwise, the worker did not submit. Although further leave was granted verbally, the factory claimed that the worker did not complete the correct application form to finalise this, despite being reminded multiple times by the factory's HR department. Eventually, the worker was informed that absence without the correct application of leave would be considered as voluntary resignation. As the worker agreed to complete the resignation process voluntarily, no termination letter was issued.
When the worker requested to return to work, the HR department requested a doctor's certificate to show his/her recovery, which they did not receive.

2019-11-04 Investigation

The complainant provided Fair Wear with an official doctor's letter from the hospital. The note recommended the worker should take a sick leave for 3 months. Fair Wear forwarded this evidence to Jack Wolfskin.

2019-11-04 Investigation

Although the complainant did not follow the procedure to request sick leave correctly, as he/she didn't hand in his/her sick note, Fair Wear is of the opinion that the factory should compensate the worker as an error was made during the application process, and the worker did require a rest period of three months.
Jack Wolfskin wished to take the employer perspective into account too, they claimed the factory had not made a mistake on purpose and that it was the worker's responsibility to submit a sick note and check documentation. The brand did not agree that the factory must pay compensation to the worker. Therefore, Fair Wear requested that the case be investigated further.

2019-11-11 Remediation

Jack Wolfskin's CSR liaison went to visit the factory in order to investigate the situation further.

2019-11-13 Remediation

The factory confirmed the receipt of the sick note passed on by Fair Wear and Jack Wolfskin and, in light of this, made the decision to amend 'personal' leave to 'sick' leave and to pay a 50% salary for that time period.

2019-11-14 Remediation

However, according to legal requirements given the receipt of the sick note, the factory must pay the worker 3 months of sick leave at the rate of at least 80% of the local minimum wage (3,888RMB for 3 months).
Moreover, as the factory terminated the labour contract with immediate effect during the worker's 3 month medical treatment period, the factory is legally required to pay double economic compensation on 1 months salary (5,000RMB for 2 months).
Fair Wear recognises that according to law, the factory must economically compensate the worker with RMB 8,888 (3,888 + 5,000).

2019-11-15 Remediation

The factory agreed to pay a partial salary for 3 months according to Chinese Labour law.

2019-12-19 Remediation

With the hope of reaching a fair and pragmatic solution between Fair Wear and the factory, the Fair Wear Chinese Representative and the factory's Chief Strategy Officer contacted each other to share their perspectives on the case.

2019-12-23 Remediation

The Chief Strategic Officer went to the factory and the factory offered to settle the case directly with the complainant. As such, the factory invited the complainant to an in-person meeting at the factory. Fair Wear also reached out to the complainant, who confirmed that he/she was willing to talk in person in order to get this problem solved as soon as possible.
During this meeting, the factory and complainant reached an agreement of 5,100 RMB as economic compensation (approximately 2 months of his/her average salary). The complainant furthermore signed an agreement to terminate the working relationship with the factory. A cash payment was made to the complainant.

2019-12-23 Evaluation of the complaint

The complainant contacted Fair Wear to confirm the receipt of RMB 5,100 and to express his/her appreciation for the support and the time spent on his/her case.

2020-01-06 Closed

This case is closed, since the factory decided to give a two months salary payment (RMB 5,000.-), which equals the economic compensation of forced resignation during medical treatment. Nevertheless the issue of the 3 month's sick leave payment (of RMB 3,888.-) remained pending since no agreement could be found . This complaint is closed since the agreement with the complainant was a mediated solution.