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Labour activist sues Walmart for wrongful dismissal and wins
When Shenzhen Walmart employee Li Wan attended a collective bargaining training seminar in neighbouring Hong Kong in the summer of 2011, she hoped the experience would help in her fight to improve pay and working conditions at the store.
However, when Walmart discovered that she had taken sick leave to attend the seminar, it fired her and refused to pay any compensation for loss of employment. Walmart claimed her actions constituted “dishonest conduct” (不诚实行为) but as Li Wan told Southern Weekend on 18 January:
Walmart was worried that I would disseminate ‘bad’ ideas about defending our legal rights amongst the workers. That was the real reason why they fired me.
Li Wan was already well-known and well-liked by co-workers at Walmart because of her efforts to gets cooling fans installed in staff locker rooms and improve conditions for female employees. So when she was fired, her co-workers rallied around and offered to pay her legal expenses during in her lawsuit against the company for wrongful dismissal.
Some workers offered substantial sums but Li Wan would only accept a maximum of five yuan from each co-worker. She explained that by limiting the size of the donation she could: “Let even more co-workers know about this matter and really gauge the level of support I had.”
The support was more than enough to cover a year-long legal battle which culminated on 16 November 2012 when the Shenzhen Intermediate People’s Court ruled that Li Wan had been illegally dismissed and awarded her the compensation she was entitled to under the law.
The court ruled that the definition of “dishonest conduct” in Walmart’s Employee Handbook was too broad and had no specific criteria and that Li Wan was entitled to organise her own activities during her approved sick leave. The ruling stipulated:
Walmart terminated the employment contract with Li Wan because she went to Hong Kong for a training program during her sick leave. Such overly harsh action was an illegal termination.
However, Li Wan is not the only labour activist to be fired by Walmart in Shenzhen over the last year. In the summer of 2012, several employees organized co-workers and lobbied the store’s trade union to initiate collective bargaining with management in a bid to resolve long-standing grievances. At the end of July, one these activists, Wang Shishu, was dismissed on the grounds of “seriously violating company regulations and damaging the company’s image.” Like Li Wan, Wang Shishu is also taking legal action against Walmart and has launched a vocal campaign demanding his reinstatement.
And earlier in July, more than 40 workers at Walmart’s Shenzhen Distribution Centre had staged a protest over planned wage adjustments and the cancellation of benefits. Four worker representatives were detained by the police and subsequently dismissed by Walmart.
The firing of worker activists at Walmart’s Shenzhen stores has highlighted once again the ineffectiveness of the company’s trade union in defending workers’ rights. The notoriously anti-union, Walmart made international headlines in 2006 when it allowed the All-China Federation of Trade Unions to establish branches in its China stores. But it soon became apparent that the company trade union representatives would always tow the management line. Walmart employees interviewed by Southern Weekend noted that, after the initial election of trade union committee members, the trade union was basically taken over by the store manager, his deputy or the human resources manager.
As a result, when labour activists like Li Wan and Wang Shishu are fired by Walmart, the enterprise trade union does nothing. As He Yuancheng of the Collective Bargaining Forum (集体谈判论坛), who was involved in Li Wan’s case, pointed out in Southern Weekend:
The Labour Law stipulates that a decision to dismiss an employee must be approved by the trade union. In Li Wan’s case, the enterprise trade union not only failed to defend her, it actually caused harm.
As economics and law Professor Chen Bulei noted, such action is quite common: “At present, enterprise trade unions do not usually play a positive role, but rather provide a ‘legal cloak’ for the company’s dismissal of employees.”
Numerous attempts by workers to make enterprise trade unions more accountable and representatives have been thwarted over the years but in Shenzhen at least the municipal trade union federation has now announced its intention to hold more open and democratic trade union elections in that city, a move recently emulated by the municipal federation in nearby Guangzhou as well.
Ultimately, however, it will still be up the workers themselves to actively participate in union affairs and reclaim enterprise trade unions for the workers.
Li Wan is a pseudonym used by Southern Weekend at the request of the plaintiff.