Illegal rescission, termination of labor contract damages

Legal risk indication:

   Illegal rescission, termination of labor contract compensation refers to the process of labor contracts in violation of relevant provisions of the employing unit labor contract law, rescission or termination of labor contract, to pay a certain amount of money to the workers. To the workers maintain a weak position in the interests, "labor contract law" has given workers under certain conditions for economic compensation rights. Unlike the economic compensation for economic damages, punitive, is a kind of punitive damages. The "labor contract law" on the basis of the provisions of article eighty-seven, the labor contract is terminated by the employer or the illegal termination, payment of compensation equivalent to two times the compensation. The employer "illegal" is the request compensation for the premise, but at the same time, according to the "labor contract law" article thirty-nine and article forty, unit of choose and employ persons under certain conditions, have the right to terminate the contract, which led to the practice of many employers abuse of the right to rescind the contract. If a laborer found illegal dissolution or termination of the labor contract by the employer, have the right to request the payment of economic compensation, compensation for economic dispute the amount of gold, have the right to initiate the arbitration of labor dispute arbitration, the arbitration may have the right to bring a lawsuit to the court.

 

The level of risk:☆ ☆ ☆ ☆

 

Risk aversion measures:

 

For the project	Focus attention
Requirements issued by the employer terminates the labor contract basis and retention	Employer unilaterally terminate the labor contract, laborer can request issued by the employer terminates the labor contract basis and retained as evidence. At the same time should identify the basis whether to belong to one of the "labor contract law" article thirty-ninth, or meet the provisions of article fortieth.
Apply to the matters needing attention during the compensation clause	The request of economic compensation, in the control of relevant laws and regulations and consulting professionals, should pay attention to the following points: 1, the employer only in workers with "labor contract law" article thirty-sixth, thirty-ninth under one of the circumstances stipulated or regulations in line with the fortieth conditions, it has the right to terminate the contract, and shall not have the forty-second article of the cases; 2, the economic compensation shall be calculated in accordance with the "labor contract law" the forty-seven calculation methods of the economic compensation standard of two times; 3, employers should rescission, termination of labor contract reason to provide sufficient evidence, cannot provide sufficient evidence, shall be deemed to be lifted, the termination of the contract is improper, illegal termination, compensation shall be paid.
Relief measures	Workers can directly request the employer shall pay the economic compensation. The employer refused to pay or has any objection to the compensation amount, can take the report, complaints to the labor administrative department, bring the labor dispute arbitration, the arbitration court and other measures to safeguard their legitimate rights and interests.

A typical case:

 

Termination of labor relations is not validBe sentenced to pay compensation

    Return, companies found that the problem lies in the operator Mr. Zhou who, according to the labor contract agreed to Mr. Zhou. Mr. Zhou arbitration, obtains the company paid illegal termination indemnity2880Element. But against the company, to the court, said without paying. For technology companies failed to provide evidence to fully effective that Mr. Zhou has serious neglect of duty and resulting in serious losses to the property of the company, so this is a termination behavior is improper. Recently, the Shanghai Minhang District people's court has compensation in the company1Based on the monthly salary, make the company to pay Mr. Zhou compensation balance2063.19Element of a judgment.

    From the Hunan Dongan Mr. Zhou in middle-aged men2008Years7Month21Into the science and technology company, the two sides signed valid for1Years of labor contract. Working content Mr. Zhou morning cleaners, afternoon operator. Last year7Month31Day, the two sides signed without a fixed term labor contract. In labor contracts"Employee seriously neglected their duties, resulting in serious losses, property, labor contract is immediately terminated"Etc..2009Years8Month, the company received customer notification, said the problems of goods return requirements. After verification, found that the goods as Mr. Zhou operation. The company believes that, because of Mr. Zhou work fault, caused the company product returns, resulting in economic losses of about1Million yuan, and the company's reputation caused by the loss. According to the contract, the company in2009Years8Month31For Mr. Zhou to dismissal. The company in the dismissal of Mr. Zhou at the same time, still pay1A month's salary as a bona fide compensation.

    Therefore, Mr. Zhou for arbitration award, Mr. Zhou terminates the labor contract law compensation paid by the company2880Element. Technology companies are not satisfied with the decision, the court of appeal, request to terminate the labor contract law without payment of compensation2880Element. Mr. Zhou argued, said that the company is not satisfied with the work and proposes to terminate the labor relationship, but not explained that because I work in the process of error. The technology company terminates the labor contract law, it did not agree with the claim.

The court thought,2009Years8Month31Day, technology companies to Mr. Zhou errors due to heavy losses on the grounds of termination of labor contract, but failed to provide sufficient evidence of supporting Mr. Zhou has serious neglect of duty and resulting in serious losses to the property of the company, so the technology company on the grounds of labor relationship between discharge and Mr Zhou's behavior is improper, should pay the corresponding compensation gold. In the trial, technology companies claim the termination of labor relations in the both sides after paying compensation should be deducted from the point of view in the calculation, it is reasonable, be permitted. Accordingly, the court made the above decision.(in this case the source: Chinese court net, author:Yang Keyuan, release time:2010-03-03 15:37:17)

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The author of this article: Beijing city labor law lawyer Shen Binti, Zhu Lin

Practising address: Beijing city Chaoyang District headingMENFinance and Trade CenterBSeat8Layer804

Electronic mailbox:Shenbinti@yahoo.com.cn Interactive blog:Http://blog.sina.com.cn/shenbinti

Business telephone:1366-131-3967 1530-111-5671

 

This paper relates to the law:

"Labor contract law"

Article thirty-ninthWorkers in any of the following circumstances, the employer may terminate the labor contract:

(a) proved during the probation period does not meet the conditions of employment;

(two) a serious breach of the rules and regulations of the employer;

(three) a serious dereliction of duty, engage in malpractices for selfish ends, causing substantial damage to the employer;

(four) workers also establishes labor relationship with other employers, to complete the task posed

Heavy impact, or the employer, refuse to correct it;

(five) for the twenty-sixth article of this law the provisions of paragraph 1 and the labor contract is invalid;

(six) were investigated for criminal responsibility according to law.

 Article fortiethAny of the following circumstances, the employer thirty days in advance written notice to the worker or extra to pay workers a month's wages, may terminate the labor contract:

    (a) the employee is sick or non work related injury, after a certain period of medical treatment can not engage in the original work, also cannot be engaged in be arranged by the employing unit of work;

    (two) the worker can not do the work, after training or adjustment to work, still not qualified for the job;

(three) the basis for the conclusion of the labor contract changes, resulting in inability to perform the labor contract, after consultation with the unit and the laborer, failed to reach agreement on Amending the labor contract.

 Article forty-secondWorkers in any of the following circumstances, the employer may not terminate the labor contract in accordance with the provisions of law fortieth, article forty-first:

    (a) engaged in contact with occupation hazards of workers not to carry out occupation health inspection before leaving, or suspected occupation disease patients during the diagnosis or medical observation;

    (two) in the unit to suffer from occupation disease or injury at work was to confirm the loss or partial loss of ability to work;

    (three) is sick or non work related injury, within the prescribed period of medical treatment;

    (four) female workers during pregnancy, childbirth, lactation;

    (five) in this work units for fifteen years, and from the mandatory retirement age of five years;

    (six) other circumstances stipulated by the laws, administrative rules and regulations.

Article seventy-seventhThe legitimate rights and interests of workers are violated, have the right to request the relevant departments in accordance with the law, or to apply for arbitration, litigation.

Article eighty-seventh  The employing unit violates the provisions of this law, rescission or termination of the labor contract, two times the standard economic compensation shall be in accordance with the provisions of this Law in article forty-seventh of the payment of compensation to the workers.

"The implementation of the labor contract law rules"

Article twenty-fifthEmployer violates the provisions of the labor contract law the dissolution or termination of the labor contract, the labor contract law in accordance with the provisions of article eighty-seventh of the compensation paid, no longer pay economic compensation. Compensation calculation period from the date of employment.