Labor dispatch labor dispute arbitration case

Labor dispatch labor dispute arbitration case

[introduction] case2004Years2Month17Day, Zhang and Beijing §§ Human Resources Service Co. Ltd to establish labor relations, on the same day sent to USA ※ ※ China Company Beijing office.2009Years2Month15Day,Beijing §§ Human Resources Service Co. Ltd.And Zhang be renewed for a period of three years of labor contract, the labor contract article second paragraph third of agreed: "Party B (workers) agree, the employer or the Party (employer) according to their performance and ability or business needs to adjust its work, work, work."2009Years 7On 8DayEmployment units, to Zhang's work does not exist on the grounds that the Zhang returned to the employer, the employer unilaterally retired workers Zhang believes that illegal, refused to decide the employer waiting, the controversy occurred, Zhang the employer and the employer to the labor dispute arbitration committee, proposed the following a request for arbitration:1, to confirm my2009Labor contracts article second paragraph third of free dismissal provisions invalid;2The ruling, the employer immediately and unconditionally return labor units for retired workers to pay economic compensation to the applicant and50%Additional economic compensation.3, requesting confirmation of employment units retired workers decided to make illegal, illegal dismissal double pay economic compensation difference (per month22112.15Yuan).4, requesting the employer to pay economic compensation to terminate the labor contract and50%Additional economic compensation (per month22112.15Yuan).5, replacement2009Years9Month9To2010Years1Month19Day treatment and25%Economic compensation (per month22112.15Yuan). Beijing city law firm tanninsShen Binti lawyers as Zhang's lawyer, to attend the trial. At present the case to the employer agrees to pay17.5Million yuan and closed, in view of the special nature of the case, the author discloses the agent opinions, initiate:

Agency comments

The arbitrator:

Beijing tannin law firm commissioned the applicant Zhang Xiaoli, appointed me --- Shen Binti lawyer Zhang Xiaoli v.Beijing §§ Human Resources Service Co. Ltd.(hereinafter referred to as the respondent a), American ※ ※ China Company Beijing Office (hereinafter referred to as the respondent two) labor dispute case, the arbitration agents. Integrated the controversial focus of the case, make the following opinions:

First, the respondent provided by one09Years forms of labor contract article second paragraph third "Party B agrees, the employer or the party according to its working performance and capability or business needs and the content of the work, work, work adjustment" and the four paragraph is invalid clause, for the following reasons:

According to the "labor contract law", the employer in accordance with the law to adjust the job workers labor contract only three: "a consistent and employee consultation; two because the worker can not do the work; three is because the objective conditions of labor contract is based on significant change occurs." in by the applicant and the applicant to provide a signed contract format third paragraph, fourth paragraph: the applicant can unrestricted tone hillock, employing units and unconditional withdrawal.

Violate the provisions of the labour law provisions of the state, on the basis of inequality, depriving the workers on the labor contract, refused to accept the transfer or changing jobs right, the state of the protection of workers would be one such trampling the respondent.

According to the labor contract law article twenty-sixth, the employer disclaims its legal obligations, excluding the rights of workers, or in violation of mandatory provisions of the law, the labor contract is invalid. Therefore, the applicant shall request the arbitration tribunal in accordance with the law the provision for invalid clause.

Second, the applicant shall be a basis "labor contract law" article86Replacement(Compensation)Applicant2009Years9Month9To2010Years1Month19Day treatment and25%Economic compensation (per month22112.15Yuan), request the payment of medical expenses3641.15Yuan and25%Economic compensation and payment of social insurance and housing provident fund during the.

1,09Years forms of labor contract article second paragraph third illegal clause led to the respondent to two non legal reasons to the applicant"Work unit transfer"--Retired workersThe applicant, cause2009Years9Month9To2010Years1Month19Daily wages losses, by the applicant shall be on the two illegal act shall bear the responsibility for compensation. According to the "labor contract law" article86Article: "the labor contract shall be confirmed as invalid and the damage is caused to the other party, the party at fault shall be liable for compensation."

2The respondent, a deliberate concealment(Has not yet been informed---In the strong request of the workers are not to produce)Dispatching agreement and the respondent two signed labor, industry economy to compensate gold back to embezzle the respondent to pay two, the nature of the bad. By the applicant as a labor dispatch company not domestic, may not know that the labor contract law article sixtieth, fifty-nine, ninety-second:

Article sixtieth labor dispatch service provider shall send the contents of the agreement to inform the dispatched laborers. The labor dispatch unit shall not deduct the employing unit labor remuneration paid to the dispatched workers in accordance with the labor dispatch agreement.

Fifty-ninth. If a labor dispatching unit shall accept the dispatched laborers and to dispatch form labor (hereinafter referred to as the receiving unit) conclude a labor dispatch agreement. The labor dispatch agreement shall stipulate... The liability for breach of the agreement.

Article ninety-second labor dispatching unit violates the provisions of this law,... Damages have been caused to the dispatched laborers, the employing units and the dispatch unit shall bear joint and several liability.

3, in the2010Years1Month19The day before, the claimant and the respondent a labor relationship has not been released, the applicant requests for reimbursement of medical expenses, the respondent should ignore a, is the act recklessly and care for nobody to trample and contempt for the laws of the state and the rights of the applicant.

A: according to labor law

Sources of funds seventy-second of social insurance funds shall be determined according to the categories of insurance, the progressive introduction of social co-ordination. Employers and workers must participate in social insurance, payment of social insurance premiums.
Article seventy-third labor under the following circumstances, enjoy social insurance benefits in accordance with the law:
(a) retirement;
(two) prevalence;
(three) disability caused by work-related injury or occupation disease;
(four) unemployment;
(five) fertility.

On the basis of the two: according to the Beijing city "2009Annual basic medical emergency expenses claim notification "requirement, insured units arrange insured workers2009In line with the reimbursement scope of the basic medical all emergency medical receipt, prescription, detailed documents and other materials, to the insurance department to declare. So the respondent should the applicant for the reimbursement of medical expenses.

On the basis of the three, the two illegal dismissal, the respondent a accept illegal dismissal, achievement by the applicant and the applicant an illegal termination of labor relations of fact(This view is discussed in the third, Fourth).Which leads to the applicant100%Reimbursement of medical expenses treatment loss and loss of wage income, according to "compensation for breach of labor contract labor law": "the employing unit violates the provisions of the labor contract or terminate the labor contract... (a) caused by the loss of wage income of workers, by workers themselves should wages paid to workers, and pay the wages income25% compensation costs;... (three) workers caused loss of medical treatment, in addition to the provisions of the state to provide medical treatment for the workers, should also pay the medical costs the equivalent of25% compensation costs;..." The applicant shall compensate the applicant a resulting in the loss of two, the respondent shall bear joint and several liability.

Third, the applicant will be the two retired workers, leading to the applicantWork shiftBy the applicant, shall pay economic compensation to the applicant, the applicant shall bear joint and several liability two.

The two will be the applicant retired workers, leading to the applicantWork shift---By the two transfer to the respondent a, shall handle the labor relations procedures, the applicant shall pay an economic compensation to the applicant, the applicant shall bear joint and several liability two. The legal basis for:

1996The general office of the Ministry of labour to "consult" on the termination or dissolution of the labor contract of economic compensation issues related to reply (Lao Ban Fa (1996) No. 33)In regulation, after the implementation of the labor contract system,Staff relocation, transfer units of work, shall be through with the original employing unit of labor relations (i.e. remove labor contract), then to establish the labor relationship with the new employer to achieve.Employing units in accordance with the "labor law" article twenty-fourth workers to put forward and both parties agree to terminate the labor contract, it shall pay economic compensation to the laborer; by the laborer proposes, the employing unit may not pay economic compensation.In this case, the respondent two retired workers behavior, leading to the "unit of work shift," and "original" by the employer in accordance with the law(In this case the respondent a)Termination of labor relations (i.e. remove labor contract), and the "new" the new employer(In this case the respondent a)The establishment of labor relations to achieve, and get the economic compensation in accordance with the law. In this case the "original" employer with a "new" employers, but does not affect the applicant "work unit and transfer the facts of nature", the applicant shall obtain the economic compensation.Just imagine, if not pay economic compensation to the laborer, then there will be such a phenomenon: the workers in this case is "before the work unit transfer" average monthly wage21112.15At this time, if not legally pay economic compensation. "Work unit" to the labor dispatch company laid off normal salary for800Element,A few months after the calculation of economic compensation, the base will be from the original22112.15Yuan straight down to800Element. It benefits the company by labor dispatch, labor units benefiting, two party malicious collusion wanton returned workers can secure to rely on. At this time, how to protect the interests of workers? Who care? This is obviously not the original intention of legislation of the labor law.

Thus, according to the "instructions" on the termination or dissolution of the labor contract of economic compensation issues related to reply and labor law legislation purpose and principle of legislation, we have reason to believe that, if the employing units is put forward and the applicant's "work unit" (retired workers), the labor dispatch unit or the employer shall to pay economic compensation to the laborer.

Fourth, the two will be the applicant's work unit transfer ""---Retired workers and illegal, the respondent a accept illegal dismissal, indirectly admitted to breaking the law themselves to terminate the labor relationship with the facts, the two respondent shall, on the illegal termination of labor relations are jointly and severally liable---Double compensation.

According to the "labor contract law" sixty-fifth paragraph second, the dispatched workers are the thirty-ninth and fortieth first, the provisions of the second case, the employer may return him to the labor dispatch unit, the labor dispatch unit in accordance with the relevant provisions of this law, may terminate the labor contract with the laborer. Namely: "(1) the dispatched worker during the probation period proved to be inconsistent with the conditions of employment; (2) dispatched laborers seriously violates the rules and regulations of the employer (3) is sent to a serious dereliction of duty, engage in malpractices for selfish ends, causing substantial damage to the employer's interests (4The dispatched workers at the same time) the establishment of labor relationship with other employers, a serious impact on the completion of the work task, or by the employing unit, refuse to make corrections (5) the dispatched workers to fraud, coercion, or position of vulnerability, so that the other party to make or change the labor contract in violation of the true meaning of the case, the labor contract is invalid (6The dispatched workers) was investigated for criminal responsibility according to law; (7) dispatched employee is sick or non work related injury, after a certain period of medical treatment can not engage in the original work, can not engage in other work arranged by the employer; (8) the dispatched workers can not do the work, after training or adjustment to work, still not qualified for the job."

In this case, the applicant does not meet the statutory conditions of "labor contract law" article thirty-nine and article fortieth, second paragraph of the first item can be retired workers, the two is still illegal to the retired workers. While the respondent is allowed by the applicant two illegal dismissal, the achievements of the applicant and the applicant an illegal termination of labor relations in fact (see the agent theory views, third) shall be paid to the applicant illegal termination of labor relations of compensation according to law, the respondent shall bear joint and several liability of the two.

Fifth, in this case the respondent should pay2010Years1Month19Day forced to terminate the labor contract and economic compensation50%Additional economic compensation (per month22112.15Yuan).

Is the applicant2009Years9Month9To2010Years1Month19Not to the applicant issued a penny wage.2010Years1Month19The date the applicant according to the labor contract law article thirty-eighth the respondent a notice to terminate the labor contract, the applicant shall be on the basis of a labor contract law article forty-sixth payment of economic compensation for termination of the labor contract.

Required to pay50%The legal basis of additional economic compensation is the Supreme Court on the law applicable to a number of Labor Dispute Cases Interpretation of article fifteenth: "the employer specific behavior forced laborer proposes to terminate the labor contract, the employing unit shall pay labor remuneration and economic compensation of workers, and pay compensation"

To sum up, regardless of the case the respondent, the respondent a two ignore state laws, malicious collusion, placing the interests of workers, illegal profits do not belong to their own interests, serious damage to the legitimate rights and interests. Please find out the truth of the arbitration tribunal, to give him a fair decision.

Agent: Beijing tannin firm Shen Binti lawyers