Teacher wins right to resign


AShanghai court recently rejected a middle school’s arguments on appeal and required the school to issue a proof of termination to a teacher who resigned.

The teacher applied twice in six months to resign from the middle school but was denied both times by the school. The teacher then unilaterally notified the school of the resignation and left the school.

The middle school refused, however, to issue a proof of termination to the teacher. The arbitration tribunal upheld the teacher’s request for the proof of termination, and the school appealed the arbitration award to the first
instance court.

On appeal, the school claimed that the teacher could not resign without the school’s permission because the employment contract contained a provision that the teacher would be liable for breach of service agreement by resigning before the end of service period if the school had sponsored training for, or provided a special benefit to, the employee.

The school said that it had handled the application for the teacher’s Shanghai household permit (hukou), which should be deemed as a special benefit. Therefore, according to the school, the teacher should have provided service until the minimum service period expired; otherwise, the school could reject the resignation.

The teacher argued that PRC law and the employment contract allowed the teacher to resign, even if the school objected. The teacher further argued that the school’s handling of the hukou application was not a special benefit, and so the teacher was not bound by the service agreement, and should not be liable for any unserved portion of the service period.

The first instance court agreed with the teacher’s arguments and ruled that the school had no legal or contractual ground on which to refuse the teacher’s resignation.

The court further ordered the school to fulfil its legal obligation in issuing a proof of termination.

Business Law Digest is compiled with the assistance of Baker McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker McKenzie by e-mailing Danian Zhang (Shanghai) at [email protected]