Should an Employee Return the Professional Qualification Certificate Obtained during the Employment to the Employer When the Labor Contract is Dissolved?

During the employment, Shen obtained 2 professional qualification certificates (“PQCs”), which are the ISO9000 Quality System Chief Auditor and the Chief Auditor. Because the company undertook the relevant training expenses, PQCs were kept by the company. Shen resigned his position, and required the company to return PQCs, but the company refused. Shen brought the dispute to the labor arbitration committee, after the first and second instance, the court ordered the company to return PQCs. Unexpectedly, the company denied that it had kept PQCs. The judgment could not be enforced. Shen filed a lawsuit against the company again, and claimed a compensation amount to RMB 30,000. Finally, the court ordered the company to compensate RMB3, 000 to Shen.

From the perspective of the employer, it has undertaken the expenses for obtaining PQCs, so PQCs shall be its “Property”. PQCs shall not be returned to the employee; otherwise, the employer would lose its “Property”. However, this opinion is not correct. The key reason is that the employer ignores the personal attributes of PQCs; and the relevant articles on the training expenses and service periods as prescribed in the “Labor Contract Law”.

PQCs (e.g. PQC for electrician, accountant and etc.) are granted to individuals, so PQCs would definitely state the name of the employee. Although some PQCs would also state the title of the employer, it would only prove the employee obtained PQCs during the employment, however, it has nothing to do with the ownership of PQCs. Although the employer has undertaken the training expenses, by which the employee could improve the working skills. However, the key reason for the implementation of the working skills is the employee’s own efforts. In view of the personal attributes of PQCs, PQCs shall belong to the employee. In fact, PQCs could not be used directly or indirectly by the successor of the employee who obtained PQCs, so PQCs are useless for the employer.

From the perspective of fairness, the employer’s investment shall also be taken into consideration. Article 22 of the “Labor Contract Law” stipulates that, “where an employer pays special training expenses for the special technical training of his employees, the employer may enter an agreement with his employees to specify their service period. If an employee violates the stipulation regarding the service period, he shall pay the employer a penalty for breach of contract. The amount of penalty for breach of contract shall not exceed the training expenses provided by the employer. The penalty for breach of a contract in which the employer requires the employee to pay shall not exceed the training expenses attributable to the service period that is unfulfilled. “ The “Regulation on the Implementation of the Labor Contract Law” has further stipulates that the training expenses include the training expenses spent by the employer on providing professional technical trainings for an employee, the travel expenses during the training and other direct expenses spent on the employee as a result of the training. In view of these, if an employer undertakes the training expenses, and the employer has entered into a written agreement with the employee on the service period and the penalty for breach of contract, while the employee resigns during the service period, the employer could request the employee to return the corresponding training expenses.

In summary, it is useless for the employer to keep PQCs after the relevant labor contract has been dissolved, in addition, the employee might claim for compensation, which is a troublesome issue for the employer. It is recommended to pay attention to the management of the training agreement, such as the employer shall design the articles of the training agreement, keep the agreement and the receipts of the expenses. If any employee resigns during the service period, the employer could claim for compensation in accordance with the relevant laws and regulations.