Labor Law Case Analysis, Labor Law Case Analysis Ask the experts to help

1. Key points of the answer: (1) The company's practices violated the provisions of the labor law. Article 13 of the Labour Code provides:

Women have equal employment rights with men. When hiring employees, they must not refuse to hire women or raise the standards for hiring women, except for jobs or positions that are not suitable for women as provided by the State. "In this case, the company's internal recruitment conditions raised the standards for hiring women, which violated women's equal employment rights.

2) Violations of the law against the company shall be corrected by the labor administrative department.

Two answers. I didn't find the answer, you were looking for it yourself).

The contract is illegal, three answers.

1) It is illegal for the coal mine to recruit 20 workers who have not terminated their labor contracts with the original unit. Article 99 of the Labor Law of the People's Republic of China stipulates that an employer shall not recruit a worker whose labor contract has not been terminated.

2) The employer takes out the pre-printed labor contract and asks the worker to sign it, which violates the principle of equality, voluntariness and consensus in signing the labor contract. Article 16 of China's Labor Law stipulates that the conclusion of labor contracts shall follow the principles of equality, voluntariness and consensus.

3) The labor contract does not comply with the provisions of the Labor Law: first, "no wages are paid during the marriage and funeral leave". The Interim Provisions on the Payment of Wages issued by the Ministry of Labor stipulate that during the period when an employee is entitled to marriage leave and bereavement leave in accordance with the law, the employer shall pay the employee's wages according to the standard stipulated in the labor contract.

Second, "extended working hours shall not exceed 40 hours per month". China's Labor Law stipulates that an employer may not extend working hours for more than 36 hours per month. Thirdly, "the employee shall notify the employer 60 days in advance of the request for early termination of the contract".

China's Labor Law stipulates that an employee shall notify the employer in writing 30 days in advance of the termination of a labor contract.

Question 1] 1) The company's practices are illegal and constitute employment discrimination.

2) The labor dispute arbitration commission generally does not accept such behavior of the company.

Question 2] 1) Mao Moumou does not need to explain the reasons when he proposes to terminate the labor contract.

2) Mao Moumou can unilaterally terminate the labor contract during the probationary period.

3) The employer may not pay Mao Moumou economic compensation.

4) Mao should not compensate the employer for the training fee

Professional and Technical Training Service Period] Article 22 of the Labor Contract Law stipulates that if an employer provides an employee with special training expenses and provides him with professional and technical training, it may enter into an agreement with the employee to stipulate the service period.

Article 16 of the Regulations for the Implementation of the Labor Contract Law stipulates that the training expenses stipulated in the second paragraph of Article 22 of the Labor Contract Law include the training expenses paid by the employer for the purpose of providing professional and technical training to the employee, the travel expenses during the training period and other direct expenses incurred by the employee as a result of the training.

If the employer and the employee have agreed on the service period, and the employee terminates the labor contract in accordance with Article 38 of the Labor Contract Law, it is not a violation of the service period agreement, and the employer shall not require the employee to pay liquidated damages.

Question 3] 1) Did the mine violate the law in the process of recruiting workers?

Article 17 of the Notice of the Ministry of Labor on Printing and Distributing the Provisions on Employment Registration (Lao Bu Fa No. 1995 No. 356) stipulates that when an employer recruits an employee, it shall check the certificate of termination or dissolution of the labor contract, as well as other documents that can prove that the employee has no labor relationship with any employer, before signing a labor contract with the employee.

2) Is the procedure for signing the contract legal?

Labor Contract Signing Principle] Article 17 of the Labor Law stipulates that the conclusion and modification of labor contracts shall follow the principles of equality, voluntariness and consensus.

3) Does the content of the employment contract comply with the law?

Invalid Labor Contracts] Article 18 of the Labor Law stipulates that the following labor contracts are invalid:

Labor contracts that violate laws and administrative regulations;

2) Labor contracts concluded by means of fraud, threats or other means.

An invalid employment contract is not legally binding from the moment it is concluded. If it is confirmed that part of the labor contract is invalid, if it does not affect the validity of the remaining parts, the period is still valid.

The invalidity of the labor contract shall be confirmed by the labor dispute arbitration commission or the people's court.

Article 26 of the Labor Contract Law stipulates that the following labor contracts are invalid or partially invalid:

1) Using fraud, coercion or taking advantage of the danger of others to cause the other party to conclude or modify a labor contract contrary to its true intentions;

2) The employer exempts itself from statutory liability and excludes the rights of employees;

3) Violating mandatory provisions of laws or administrative regulations.

If there is a dispute over the invalidity or partial invalidity of the labor contract, it shall be confirmed by the labor dispute arbitration institution or the people's court.

Summary. Kiss; The Arbitration Commission's practice is lawful. According to Article 33 of the Law of the People's Republic of China on Labor Dispute Mediation and Arbitration, an employee shall apply to the Labor Dispute Mediation Committee for mediation or arbitration within 6 months of handling the labor dispute with the employer.

Labor Law Case Study Ask the experts to help.

In October 2012, Company A recruited Mr. Zhao as a sales manager, and the two parties signed a two-year contract with a monthly salary of 5,000 yuan. A few months passed, Zhao's performance was poor, and the company gradually lost confidence in him. In February 2013, the company reduced Zhao's salary and only paid Zhao a salary of 800 yuan.

Mr. Zhao failed to negotiate with the company on this matter, and in March 2013, Mr. Zhao terminated the contract with the company. In August 2013, Mr. Zhao applied to the Labor Dispute Arbitration Commission for arbitration, but the Arbitration Commission refused to accept it on the grounds that the time limit had expired. So Li filed a lawsuit with the people's court.

Is the CIETAC lawful? What is buried for the letter?

Kiss; The approach of the arbitration commission is in accordance with the law. According to Article 33 of the Law of the People's Republic of China on Labor Dispute Mediation and Arbitration, the employee shall apply to the Labor Dispute Mediation Committee for mediation or arbitration within 6 months of the labor dispute with the employer.

Kiss; Mr. Zhao applied to the arbitration commission for arbitration only five months after the employment contract was buried, which had exceeded the statutory time limit for application. Therefore, it is lawful for the Arbitration Board to dismiss the case on the grounds that the time limit has expired.

In May of that year, Chen went to a foreign company to apply for a job, claiming that he had graduated from a prestigious university with a master's degree in law and obtained a judicial examination qualification certificate, and handed over a copy of his certificate to the recruiter. The company was in urgent need of legal counsel, so it hired Chen with a high salary and asked him to be the legal director, and the two parties signed a labor contract with a contract period of 5 years and a probation period of 6 months. Since Mr. Chen started working in May 2010, he often made mistakes during the probationary period, especially in a contract review, and did not provide legal advice on major omissions in the contract, resulting in huge losses for the company.

In December 2010, the company learned that Chen's bar examination certificate was forged. As a result, the company immediately claimed to terminate the labor contract with Chen. Chen was dissatisfied and had a labor dispute with the company.

Kiss; The labor dispute filed by Chen is a rights dispute. According to Article 38 of the Labor Law of the People's Republic of China, "In the event of any of the following disputes between an employer and an employee, the following procedures may be followed: ......A Ming Min) right to return to the genus:

Disputes over the conclusion, execution, alteration and termination of labor contracts. ”

Kiss; Because the main content of the dispute between Chen and the company is the termination of the labor contract, which belongs to the category of ownership of rights, this is a rights dispute.

1.Mr. Li is entitled to home visit leave in accordance with the law, and the employer's failure to take home visit leave should be corrected;

2.In the case that Li's repeated applications were not approved, he should seek legal means to obtain relief, and should not leave his post without permission;

1. According to the "Provisions on the Treatment of Employees to Visit Relatives", there is no provision for whether employees of non-state-owned enterprises and institutions have family visit leave. Therefore, such employers can decide whether to formulate their own rules and regulations on home visit leave with reference to the relevant provisions of the employer according to the actual situation of the employer.

So the company does not necessarily agree to family leave.

2. If you leave your post without permission during work, the company can also give sanctions.

Based on the above cases, 1) if the company terminated the labor contract on February 5, 2007, should it pay Zhu Daguang severance compensation? If so, how much? Why?

If not, why? If the contract is not renewed on February 4, 2008, should Zhu Daguang be paid severance compensation? If so, how much?

Why? If not, why?

According to Article 5 of the Regulations for the Implementation of the Labor Contract Law, if the employee does not conclude a written labor contract with the employer within one month from the date of employment, the employer shall notify the employee in writing to terminate the labor relationship, and shall not pay economic compensation to the employee, but shall pay the employee the labor remuneration for his actual working time in accordance with the law.

2) Does Zhu Daguang have the right to request to sign an indefinite labor contract with the company? Why?

Article 11 of the Labor Contract Law Unless the employee and the employer reach an agreement through consultation, if the employee proposes to conclude an indefinite-term labor contract in accordance with the provisions of Paragraph 2 of Article 14 of the Labor Contract Law, the employer shall conclude an indefinite-term labor contract with the employee. The content of the labor contract shall be determined through consultation between the two parties in accordance with the principles of legality, fairness, equality, voluntariness, consensus, and good faith; The content of the inconsistency through negotiation shall be implemented in accordance with the provisions of Article 18 of the Labor Contract Law.

3) If Zhu Daguang filed for labor dispute arbitration on March 4, 2009 for the company's failure to pay social insurance premiums to him, should the arbitral tribunal accept it? Why?

On the issue of paying social insurance, you can first report or complain to the Labor and Social Security Bureau, which is not included in the scope of labor arbitration for the time being.

4) Zhu Daguang refused to sign the labor contract, and the company asked him to resign, Zhu Daguang was not satisfied and decided to file a complaint with the Labor Arbitration Commission, and asked to draft a complaint on his behalf.

According to Article 5 of the Regulations for the Implementation of the Labor Contract Law, if the employee does not conclude a written labor contract with the employer within one month from the date of employment, the employer shall notify the employee in writing to terminate the labor relationship, and shall not pay economic compensation to the employee, but shall pay the employee the labor remuneration for his actual working time in accordance with the law.

If the company fails to produce a written notice of dismissal, it may request the employer to dissolve or terminate the labor contract in accordance with Article 25 of the Regulations for the Implementation of the Labor Contract Law, and if the employer has paid compensation in accordance with Article 87 of the Labor Contract Law, it shall not pay economic compensation. The calculation period of compensation shall be calculated from the date of employment.

Now another question is whether Mr. Zhu worked in the company from March 5, 2009 to March 4, 2010, and if not, the statute of limitations for labor arbitration application is one year, and the application in advance will not be accepted now.