If you have not worked in the company for three months, can the labor contract be terminated?

If you do not work for three months, if there is a leave request and leave formalities, the labor contract will not be terminated.

If the employee does not go to work for three months, the employer will treat the employee as absenteeism and terminate the labor contract with the employee as a serious violation of the employer's rules and regulations.

Labor Contract Law

Article 4 Employers shall establish and improve labor rules and regulations in accordance with the law to ensure that workers enjoy labor rights and perform labor obligations.

When an employer formulates, amends, or decides on rules and regulations or major matters directly related to the vital interests of employees, such as labor remuneration, working hours, rest and vacation, labor safety and health, insurance and benefits, employee training, labor discipline, and labor quota management, it shall discuss with the workers' congress or all employees, put forward plans and opinions, and negotiate with the trade union or employee representatives on an equal footing.

In the process of implementing the rules and regulations and decisions on major matters, if the trade union or employees deem it inappropriate, they have the right to propose it to the employer and revise and improve it through consultation.

The employer shall publicize or inform the employee of the rules and regulations and decisions on major matters that directly affect the vital interests of the employee.

Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances:

2) Seriously violating the rules and regulations of the employer;

The old and new laws stipulate that those who are absent from work for less than three days will be deducted one month's salary and quarterly bonus; Those who are absent from work for a total of five days will be deducted from three months' salary and half a year's bonus, and the year-end assessment will be regarded as basic competence. Those who are absent from work for more than 10 days will be deducted from their half-year monthly salary and annual bonus, and the year-end assessment will be regarded as incompetent.

If the employee is absent from work for a total of 15 days, the unit has the right to dismiss him in accordance with relevant regulations.

Absenteeism does not include statutory holidays. However, if you are absent from work for less than three days, it will generally be handled according to the company's regulations.

You can apply for labor arbitration to request the employer to give economic compensation. If an employer dissolves or terminates a labor contract in violation of the provisions of these Measures, it shall pay compensation to the employee in accordance with twice the standard of economic compensation provided for in Article 47 of this Law. If there is a failure to sign a labor contract, failure to pay social security in full, failure to pay overtime pay, etc., compensation can be claimed at the same time.

Legal analysis

1.You need to file an arbitration application with the labor arbitration department of your place of work; 2.You can ask for 3 months' salary (compensation for not signing an employment contract); 3.

You can also ask for half a month's salary (economic compensation for illegal termination of labor contract); 4.If there is overtime on statutory holidays, you can ask for 300% of the overtime day; 5.If overtime is arranged on public holidays without compensatory leave, 200% of the salary can be requested; 6.

If you extend your working hours during working hours, you can ask for 150% of your salary. If an employer dissolves or terminates a labor contract in violation of the provisions of this Law, and the employee requests to continue to perform the labor contract, the employer shall continue to perform it; If the employee does not request to continue to perform the labor contract or the labor contract can no longer be performed, the employer shall pay compensation in accordance with Article 87 of this Law. Compensation can be claimed as follows:

Half a month's salary as compensation, which is based on the average salary of the previous months, including bonuses, allowances and subsidies; If you are not notified 30 days in advance, you will also be given one month's salary in lieu of notice, which is the salary due from the previous month; Asking for double wages from the second month of employment due to the failure to sign a contract; Make up social security contributions.

Legal basis

Labor Contract Law of the People's Republic of China

Article 48 Where an employer dissolves or terminates a labor contract in violation of the provisions of this Law, and the worker requests to continue to perform the labor contract, the employer shall continue to perform it; If the employee does not request to continue to perform the labor contract or the labor contract can no longer be performed, the employer shall pay compensation in accordance with Article 87 of this Law.

Article 87 Where an employer dissolves or terminates a labor contract in violation of the provisions of this Law, it shall pay compensation to the worker in accordance with twice the standard of economic compensation provided for in Article 47 of this Law.

Compensation can be claimed as follows:

1.Half a month's salary as compensation, which is based on the average salary of the previous months, including bonuses, allowances and subsidies;

2.If you are not notified 30 days in advance, you will also be given one month's salary in lieu of notice, which is the salary due from the previous month;

3.Because he did not sign a contract, he was required to pay double the salary from the second month of employment4Make up social security contributions.

The premise of the above compensation is that you can prove your employment relationship.

If the employee does not go to work for a period of time that seriously violates the rules and regulations of the employer, the employer may terminate the labor contract. The specific time shall be stipulated by the employer in its rules and regulations or in the labor contract with the employee in accordance with the law.

Article 36 of the Labor Contract Law of the People's Republic of China The employer and the employee may terminate the labor contract if they reach a consensus through consultation. Article 39 of the Labor Contract Law of the People's Republic of China If an employee has any of the following circumstances, the employer may terminate the labor contract: (1) It is proved that he does not meet the employment requirements during the probationary period; 2) Seriously violating the rules and regulations of the employer; (3) Serious dereliction of duty, malpractice for personal gain, causing major harm to the employer and the unit; (4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the unit, or refuses to make corrections after being proposed by the employer; (5) The labor contract is invalid due to the high level of circumstances provided for in Item 1, Paragraph 1 of Article 26 of this Law; (6) Those who have been pursued for criminal responsibility in accordance with law.

If the employee does not go to work, the labor contract will not be automatically terminated, but the employer may take the initiative to terminate the labor contract with the employee because the employee has seriously violated the rules and regulations of the employer. Generally, if the employee is absent from work for three consecutive days or for a total of 15 days, it is a serious violation of discipline, and the unit may terminate the contract in accordance with the law.

Issues that should be paid attention to in the termination of the contract:

1. The termination of the contract is generally only applicable to the situation of unilateral breach of contract, and it is more complicated in the case of breach of contract by both parties, depending on which party's breach of contract is a fundamental breach of contract, and the exercise of the right of termination depends on the specific circumstances;

2. From the perspective of self-protection, it is not necessary to terminate the contract as long as the other party breaches the contract, but to judge whether the breach of contract is a fundamental breach of contract, and whether it is possible to avoid causing greater losses to oneself if the termination measures are not taken. In other words, the exercise of the right to rescind the contract must be consistent with a legitimate purpose;

3. From the perspective of transaction costs, the termination of the contract means that the transaction fails, and one party will terminate the contract if it breaches the contract, which will bring heavy transaction costs to the market transaction, and bring impact and damage to the market transaction order and security;

4. Generally speaking, the purpose of the contract is linked to the main obligation of the contract, and the breach of the main obligation will make it difficult to achieve the purpose of the contract, while the simple violation of the ancillary obligations arising from the principle of good faith will generally not lead to the loss of the purpose of the contract and cannot be terminated on this basis;

5. Improper performance and contract termination. Improper performance means that the goods delivered by the debtor do not meet the quality requirements stipulated in the contract, that is, the performance is defective. If the defect is not serious, it is generally required to be remedied by price reduction and repair, rather than being terminated.

In summary, if the defect itself can be repaired, the non-breaching party has the right to require the breaching party to repair the defect. Giving the non-breaching party the right to have the defect repaired actually gives him an opportunity to repair the defect and thus avoid rescission of the contract.

Legal basis

Article 36 of the Labor Contract Law of the People's Republic of China.

Termination of Labor Contract through Negotiation] The employer and the employee may terminate the labor contract if they reach a consensus through consultation.

Article 39.

Unilateral termination of the labor contract by the employer (negligent dismissal)] The employer may terminate the labor contract if the employee falls under any of the following circumstances:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

(4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the unit, or refuses to make corrections after being proposed by the employer;

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

(6) Those who have been pursued for criminal responsibility in accordance with law.

Legal analysis: If you have not signed a labor contract, you can leave immediately after leaving the company in writing, in addition to asking the employer to pay your salary and deposit, you can also claim economic compensation, double salary from the second month, and social security payment; If the negotiation fails, you can apply for labor arbitration, which is counted from the time you leave the company, and the statute of limitations for labor arbitration is one year.

Legal basis: Labor Contract Law of the People's Republic of China

Article 3 The conclusion of a labor contract shall follow the principles of legality, fairness, equality, voluntariness, consensus, honesty, trustworthiness and violentness. A labor contract concluded in accordance with the law is binding on the sale of knowledge, and the employer and the employee shall perform the obligations stipulated in the labor contract.

Article 10 A written labor contract shall be concluded for the establishment of labor relations. If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. If the employer and the employee conclude a labor contract before employment, the employment relationship shall be established from the date of employment.

Article 36 The employer and the worker may terminate the labor contract if they reach a consensus through consultation.

There is compensation for resignation after working for three months without signing an employment contract. According to Article 82 of the Labor Contract Law, if an employee does not sign an employment contract for more than one month after joining the employer, he or she is required to pay double wages.

1. Is there any compensation for resignation without signing a labor contract after three months of work?

There is compensation for resignation after working for three months without signing an employment contract.

It is a violation of the Labor Contract Law to work for the company for three months without signing an employment contract, and if you are dismissed, you can ask the employer to pay twice the monthly salary. He has worked in the company for three months and has not signed a labor contract. If the employee is dismissed, the employer shall compensate for double wages from the second month, but the company will not compensate or the wages are in arrears, and the employee needs to apply to the local human resources and social security bureau for arbitration with evidence that can prove the de facto labor relationship, and request the employer to return the arrears of wages and compensation.

The employer shall sign a written labor contract with the employee within one month from the date of employment, and if the employer fails to conclude a written labor contract with the employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly wage.

It is the right of the employee to resign, and the employee may terminate the labor contract by notifying the employer in writing 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probationary period.

2. Under what circumstances can I claim financial compensation if I resign?

1. Failure to provide labor protection or working conditions;

2. Failure to pay labor remuneration in full and in a timely manner;

3. Failure to pay social insurance premiums in accordance with the law;

4. Illegal rules and regulations, harming the rights and interests of employees;

5. The contract is invalid due to fraud, coercion or taking advantage of the danger of others;

6. Forced labor by violence and other means;

7. Illegal command and forced risky operations endanger the personal safety of employees.

3. What should I pay attention to when submitting my resignation?

1. It is recommended to use "Notice of Termination of Labor Contract" or "Notice of Resignation", and it is not appropriate to use "Resignation Application". Since the right to terminate the labor contract is a unilateral right, there is no need to apply. If the "application" is used, it may be regarded as an offer by the employee to terminate the employment contract through negotiation, and the termination through negotiation can only be achieved if both parties agree on the same intentions.

Therefore, to ensure that your resignation is not hindered, it is advisable to use a "notice";

2. The notice of resignation must be signed by the company, and the employee retains the evidence of receipt. If an employee gives the resignation notice to the company but does not sign for it, the company will say that the employee leaves the company without notice and is absenteeism, which will be very detrimental to the employee.

In the case of entering the employer, the employer needs to actively sign a labor contract with the employee, which is a legal obstacle for the employee. If the employment contract is not signed for a long time, then according to Article 32 of the Labor Contract Law, it shall pay double wages, which is a punishment for the employer.