Conflict And Balance Between Employee’s Loyalty Duty And Freedom Of Speech

The mutuality of rights determines the inevitability of conflict between each other.The conflict between employee loyalty obligations and freedom of speech arising from the choice of employers’ interests and protection of citizens’ freedom of speech is unavoidable.The Virgin Atlantic flight attendant Tucao case fully demonstrated the conflicts between the two,and also aroused all walks of life.Wide attention and lively discussion.So far,it is not uncommon for employees to be punished or even expelled from employers due to improper speech and related labor disputes and civil disputes have brought the reality of the contradiction between the obligation of loyalty and freedom of speech into the public eye again.After screening,139 cases of laborers having disputes with employers due to inappropriate speeches were used as samples,and the cause of the case,the results of the judgment,and the reasons for the judgment were used as variables.Through empirical analysis,it was found that there was a conflict between the laborer’s duty of loyalty and freedom of speech.The problem has not yet attracted attention,and there is very little mention of the two in judicial practice,let alone discussing the conflict between the two;because the main contradiction is not grasped,the trial practice of such disputes has been delayed.The formation of clear and uniform judgment standards has kept the appeal rate of such cases at a high level.Through the normative analysis method,it is found that my country’s current laws do not clearly stipulate the duty of loyalty,and the boundaries of the exercise of freedom of speech are also blurred.Therefore,it is necessary to make a coordinated strategy for the conflict between improper speech of laborers and freedom of speech based on the dialectical reference of foreign experience and the actual situation of our country.The structure of this article is divided into four parts.First,by introducing the basic situation of the sample cases,it is clear that the current judicial practice in the current stage of the attitude towards such cases and the issues alluded to by the courts-ignoring the conflict between the obligation of loyalty and freedom of speech;Secondly,from the perspective of the legal basis of the duty of loyalty and the legal basis of freedom of speech,the content and contradiction between the two are extended,that is,the actual conflict between the freedom of speech of the employee and the management right of the employer,the reputation of the employer and the trade secret;To narrate the reasons for the conflict between the obligation of loyalty and freedom of speech,sort out the ambiguity of the boundary between the obligation of loyalty and freedom of speech,the lack of guidance on the exercise of disciplinary power by employers,the lack of internal procedures for exposing fraud in employers,and the unreasonable distribution of burden of proof in judicial practice The reasons for the four major conflicts;finally,the coordination principle and coordination path are put forward for the above part of the problem.On the basis of adhering to the principle of proportionality,the three red lines of the division of labor levels,the time and space scope of speech and the protection of major legal interests of labor are regarded as the obligation of loyalty.At the same time,combining the actual malice and referring to the elements of infringement as the boundary of freedom of speech,by prohibiting the employer’s malicious retaliation,determining whether the disciplinary measures are equivalent to the degree of fault,reviewing the legality and rationality of the employer’s rules and regulations,and clarifying the execution procedures for faulty dismissal The four major aspects restrict the scope of employers’ disciplinary powers,and at the same time establish an internal mechanism for exposing fraud,so as to realize the coordination of the conflict between the laborer’s duty of loyalty and freedom of speech.We hope to realize the harmonious,stable and sustainable development of society and labor-management relations on the basis of resolving the conflict between employees’ loyalty obligations and freedom of speech.