Can an employer be compensated for liquidated damages for early termination of an employment contrac

Lawyer Jiang Hua answers: Hello, I am glad to answer your questions about the labor contract. According to Article 28 of the Labor Law, which stipulates that "if an employer terminates a labor contract in accordance with the provisions of Articles 24, 26 and 27 of this Law, it shall provide economic compensation in accordance with the relevant provisions of the state" and Article 5 of the Measures for Economic Compensation for Violation and Termination of Labor Contracts (Lao Bu Fa [1994] No. 481) of the Ministry of Labor

If the working time is less than one year, severance shall be paid at the rate of one year. Article 8 stipulates: "If there is a major change in the objective circumstances on which the labor contract was concluded, making it impossible to perform the original labor contract, and the parties cannot reach an agreement on the modification of the labor contract after consultation, and the employer terminates the labor contract, the employer shall pay the employee an economic compensation equivalent to one month's salary for each full year of service in the employer."

Article 11 stipulates: "The wage calculation standard of severance in these Measures refers to the average monthly wage of the employee in the 12 months prior to the termination of the contract under the normal production conditions of the enterprise." When an employer terminates a labor contract in accordance with Articles 6, 8 and 9 of these Measures, if the average monthly wage of the employee is lower than the average monthly wage of the enterprise, the employee shall be paid according to the standard of the average monthly wage of the enterprise.

If an employee terminates a labor contract in advance, it is an act of exercising the right to resign, and he shall not be liable for breach of contract. The employee shall notify the employer 30 days in advance, and if the employee fails to do so, the employer may require the employee to bear the compensation for the economic losses. However, if the employer and the employee have a special agreement on the service period, and the employee violates the agreement and terminates the employment in advance, the employee shall be liable for breach of contract.

The employment contract may stipulate liquidated damages under the following two circumstances: 1Liquidated damages may be agreed upon in the training service period agreement.

2.Liquidated damages may be stipulated in the non-compete agreement. Article 22 of the Labor Contract Law provides that if an employer provides an employee with special training expenses and professional and technical training, it may enter into an agreement with the employee to stipulate the service period.

If the employee violates the service period agreement, he shall pay liquidated damages to the employer in accordance with the agreement. The amount of liquidated damages shall not exceed the training fees provided by the employer. The liquidated damages required by the employer shall not exceed the training expenses that should be apportioned for the unfulfilled part of the service period.

If an employer agrees with an employee on a period of service, it does not affect the increase in the employee's remuneration during the period of service in accordance with the normal wage adjustment mechanism.

Legal analysis: 1. An employee shall notify the employer in writing 30 days in advance of the termination of the labor contract. This provision indicates that the worker has the right to terminate the labor contract.

2. Payment of liquidated damagesOnly those who violate the provisions of the non-compete and service period need to pay liquidated damages. Therefore, there is generally no need to pay liquidated damages for early termination of an employment contract.

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

Article 31 A worker who terminates a labor contract shall notify the employer in writing 30 days in advance. This provision indicates that the employee has the right to terminate the employment contract.

Article 25 Payment of liquidated damages: Liquidated damages shall only be paid in violation of the provisions of the non-compete restriction and service period. Therefore, there is generally no need to pay liquidated damages for early termination of an employment contract.

Civil Code of the People's Republic of China

Article 577:Where one of the parties fails to perform its contractual obligations or its performance does not conform to the agreement, it shall bear liability for breach of contract such as continuing to perform, taking remedial measures, or compensating for losses.

Article 582:Where performance does not conform to the agreement, liability for breach of contract shall be borne in accordance with the agreement of the parties. Where there is no agreement on liability for breach of contract or the agreement is not clear, and it cannot be determined in accordance with the provisions of Article 510 of this Law, the injured party may, based on the nature of the subject matter and the size of the loss, reasonably choose to request the other party to bear liability for breach of contract such as repair, rework, replacement, return, reduction of price or remuneration.

Article 585:The parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach, and may also agree on the method of calculating the amount of compensation for losses arising from the breach.

If the agreed liquidated damages are lower than the losses caused, the people's court or arbitration institution may increase them at the request of the parties; Where the agreed liquidated damages are excessively higher than the losses caused, the people's court or arbitration institution may, at the request of the parties, appropriately reduce them.

If the parties agree on liquidated damages for delayed performance, the breaching party shall also perform the debt after paying the liquidated damages.

First of all, according to the provisions of the Labor Contract Law, an employee may terminate the labor contract by notifying the employer in writing 30 days in advance. Secondly, there are situations that need to pay liquidated damages: 1. The employee seriously violates the rules and regulations of the employer; 2. The employee is seriously derelict in his duties, commits fraud for personal gain, and causes heavy losses to the employer; 3. The worker establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the employer, or refuses to make corrections after being proposed by the employer; 4. The worker uses fraud, coercion or taking advantage of the danger of the employee to cause the employer to conclude or modify the labor contract contrary to the true intention; 5. The worker is investigated for criminal responsibility in accordance with the law.

Article 31 of the Labor Law stipulates that an employee shall notify the employer in writing 30 days in advance of the termination of the labor contract. On the surface, Article 31 of the Labor Law seems to stipulate the absolute right of resignation of employees, but in practice, Article 31 of the Labor Law should be understood in conjunction with the provisions of Article 17, Paragraph 2 of the Labor Law. Paragraph 2 of Article 17 of the Labour Code provides:

The labor contract is legally binding immediately and the parties must perform the obligations stipulated in the contract. The term of the employment contract and the liability for breach of the employment contract are essential clauses in the employment contract. If the term of the labor contract is violated, the early termination of the labor contract shall be regarded as a breach of contract, and liquidated damages shall be paid to the employer.

It seems that the company wants to terminate the contract early, not your will.

There are several situations in which the company terminates the labor contract early.

Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances: (without paying compensation).

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 employer, or refuses to make corrections upon the employer's request;

5) The labor contract is invalid due to fraud or coercion or taking advantage of the danger of others, causing the other party to conclude or modify the labor contract contrary to its true intentions;

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

Normal termination, pay economic compensation, leave the factory minus the date of entering the factory, calculate the compensation for the whole year and the whole month, pay one month compensation for one year, half a month for less than six months, and calculate one month within the previous year for six months.

For illegal termination, compensation shall be paid, which shall be twice the amount of compensation, but only one type of compensation and compensation shall be paid. It depends.

As long as the employee has not violated any law or discipline and the company has not reached a consensus with the employee through negotiation, the early termination of the labor contract will be deemed to be an illegal termination of the labor contract, and the employee shall be liable to pay twice the compensation stipulated in Article 82 of the Labor Contract Law.

Severance shall be paid to the worker according to the number of years of service in the employer and one month's salary for each full year. where it is more than six months but less than one year, it is calculated as one year; If it is less than six months, the worker shall be paid half a month's salary.

The standard is the average salary for the previous 12 months, including bonuses, allowances and subsidies.

If the contract is terminated illegally, the compensation will be doubled according to the above standard.