Do I still have to go to work when I apply for resignation in labor arbitration?

Labor arbitration refers to the procedure in which the labor dispute arbitration commission arbitrates and adjudicates the labor dispute applied for arbitration by the parties. In China, labor arbitration is a necessary procedure for parties to a labor dispute to file a lawsuit in the people's court. Going to labor arbitration is not considered going to work.

If an employer requires an employee to go to work, the employee should go to work without a legitimate reason, and cannot refuse to go to work on the grounds that a labor dispute is occurring between the two parties. If an employee is absent from work and seriously violates labor discipline, the employer may dismiss the employee, so it is recommended that the employee should go to work in accordance with the requirements of the unit before the employer makes a decision on the dismissal and punishment of the employee. However, if you request to terminate the employment relationship with the employer in the arbitration claim, there is no need to go back to work.

Before the labor dispute arbitration commission officially issues the arbitration conclusion, the employment relationship between the employee and the employer still exists, and the employee should continue to perform the labor contract.

In accordance with the Labor Contract Law

Article 29 The employer and the worker shall fully perform their respective obligations in accordance with the provisions of the labor contract.

According to the Law on Mediation and Arbitration of Labor Disputes

Article 2 This Law shall apply to the following labor disputes between employers and workers within the territory of the People's Republic of China:

1) Disputes arising from the confirmation of labor relations;

2) Disputes arising from the conclusion, performance, modification, rescission and termination of labor contracts;

3) Disputes arising from removal, dismissal, resignation, or resignation;

4) Disputes arising from working hours, rest and vacation, social insurance, welfare, training, and labor protection;

5) Disputes arising from labor remuneration, medical expenses for work-related injuries, economic compensation or compensation, etc.;

6) Other labor disputes as stipulated by laws and regulations.

Article 3 In resolving labor disputes, the lawful rights and interests of the parties shall be protected in accordance with the lawfulness, fairness, timeliness and emphasis on mediation in accordance with the facts and in accordance with the law.

Article 4 In the event of a labor dispute, the worker may negotiate with the employer, or may ask the trade union or a third party to negotiate with the employer and reach a settlement agreement.

Article 5 In the event of a labor dispute, if the parties are unwilling to negotiate, fail to negotiate or fail to perform after reaching a settlement agreement, they may apply to the mediation organization for mediation; If the applicant is unwilling to mediate, fails to mediate, or fails to perform after reaching a mediation agreement, he or she may apply to the Labor Dispute Arbitration Commission for arbitration; If a person is dissatisfied with an arbitral award, he or she may file a lawsuit in the people's court, except as otherwise provided by this Law.

Continuing to work will not affect the resolution of labor disputes.

Legal analysis: You can still apply for labor arbitration after resignation, but you can apply for labor arbitration if it has not exceeded the statute of limitations for applying for arbitration, and the limitation period for applying for arbitration and arbitration for labor disputes is one year, that is, you can apply within one year after resignation. The limitation period for arbitration shall be calculated from the date on which the parties knew or should have known that their rights had been infringed.

Legal basis: Article 27 of the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes Article 27 The limitation period for applying for arbitration of labor disputes is one year. The limitation period for arbitration shall be calculated from the date on which the parties knew or should have known that their rights had been infringed.

The statute of limitations for arbitration provided for in the preceding paragraph shall be interrupted when one of the parties claims rights against the other party, or requests rights and remedies from the relevant authorities, or the other party agrees to perform its obligations. From the time of interruption, the arbitration limitation period is recalculated. Where the parties are unable to apply for arbitration within the limitation period provided for in paragraph 1 of this Article due to force majeure or other legitimate reasons, the limitation period for arbitration shall be suspended.

The limitation period for arbitration shall continue to run from the date on which the reasons for the suspension are eliminated. If a dispute arises due to arrears of labor remuneration during the existence of the labor relationship, the employee's application for arbitration shall not be subject to the limitation period for arbitration as provided for in the first paragraph of this Article; However, if the labor relationship is terminated, it shall be filed within one year from the date of termination of the labor relationship.

OK. The power is violated, so regardless of whether you resign or not, you can apply for arbitration, and you can also claim overtime compensation, back all insurance, etc. If you don't sign a contract and still work in the company, you can also ask for double the salary.

Legal basis: Article 4 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China In the event of a labor dispute, the employee may negotiate with the employer, or ask the labor union or a third party to negotiate with the employer and reach a settlement agreement. Article 5 In the event of a labor dispute, if the parties are unwilling to negotiate, fail to negotiate or fail to perform after reaching a settlement agreement, they may apply to the mediation organization for mediation; If the applicant is unwilling to mediate, fails to mediate, or fails to perform after reaching a mediation agreement, he or she may apply to the Labor Dispute Arbitration Commission for arbitration; If a person is dissatisfied with an arbitral award, he or she may file a lawsuit in the people's court, except as otherwise provided by this Law.

Article 6 In the event of a labor dispute, the parties concerned shall have the responsibility to provide evidence for their own claims. If the evidence related to the disputed matter is in the possession and management of the employer, the employer shall provide it; If the employer does not provide it, it shall bear the adverse consequences. Article 7 Where there are more than 10 workers in a labor dispute and there is a joint request, a representative may be nominated to participate in mediation or arbitration.