Ask about the termination of the labor contract in arrears of wages

Hello, if the employer only delays the payment of wages for a few days, it will generally not be supported to file a complaint with the labor inspection or apply for labor arbitration.

A few days in arrears will not be recognized as "arrears of wages", and it takes time for the unit's financial accounting, statistical attendance, and performance checking, and the court and arbitration commission will not treat the situation of a few days in arrears as "arrears of wages".

Whether you can get compensation for your resignation depends on whether you resign or the employer dismisses you. If you are dismissed, you will be compensated for one month's salary for one year of work.

Legal Analysis: If the employer is in arrears of wages, the employee may unilaterally terminate the labor contract and compensate the employee for the loss. However, Chinese law does not clearly stipulate whether an employee can immediately terminate a labor contract.

Legal basis: Article 48 of the Labor Law of the People's Republic of China The State implements the minimum wage guarantee system. The specific standards of the minimum wage shall be prescribed by the people of the provinces, autonomous regions and municipalities directly under the Central Government, and shall be reported for the record.

The wages paid by the employer to the employee shall not be lower than the local minimum wage.

Labor Contract Law of the People's Republic of China

Article 30 The employer shall, in accordance with the provisions of the labor contract and the provisions of the State, pay the labor remuneration to the worker in full and in a timely manner. If the employer is in arrears or fails to pay the remuneration of the labor bureau in full, the worker may apply to the local people's court for a payment order in accordance with the law, and the people's court shall issue a payment order in accordance with the law.

Article 44 Under any of the following circumstances, the employer shall pay the wages and remunerations higher than the wages of the workers for normal working hours in accordance with the following standards: (1) if the workers are arranged to work longer hours, they shall be paid wages and remunerations of not less than 150 percent of the wages; (2) Where a worker is assigned to work on a rest day and cannot be arranged for compensatory leave, a wage remuneration of not less than 200 percent of the wage shall be paid; (3) Where a worker is assigned to work on a statutory holiday, he shall be paid a salary of not less than 300 percent of his wages.

Legal Analysis: Yes. If the employer is in arrears of wages, the employee may apply to the labor dispute arbitration commission where the employer is located to request the payment of the arrears of wages, and the employee may terminate the labor contract immediately in accordance with the provisions of the Labor Contract Law, without prior notice to the employer, and the employer shall pay economic compensation to the employee.

Legal basis: Article 38 of the Labor Contract Law of the People's Republic of China An employee may terminate a labor contract under any of the following circumstances: (1) failing to provide labor protection or working conditions in accordance with the labor contract; (2) Failure to pay labor remuneration in full and in a timely manner; (3) Failing to pay social insurance premiums for workers in accordance with the law; (4) The rules and regulations of the employer violate the provisions of laws and regulations and harm the rights and interests of workers; (5) The labor contract is invalid due to the circumstances provided for in the first paragraph of Article 26 of this Law; (6) Other circumstances in which the labor contract may be terminated as provided by laws and administrative regulations.

If an employer forces an employee to work by means of violence, threats or illegal restriction of personal freedom, or if the employer directs or forces the employee to perform risky work in violation of rules and regulations and endangers the employee's personal safety, the employee may immediately terminate the labor contract without prior notice to the employer.

We know that the usual income is very important for employees, but in many cases, the company defaults on wages, so there is no intention to continue to do it, so how should we get the wages back if we want to terminate the labor contract? Let me explain the relevant content for you to learn for your reference, I hope it will be helpful to you.

1. How to get back the arrears of wages after the termination of the labor contract

If the employer is in arrears of wages, he or she can file a complaint with the security supervision brigade of the labor department, or directly apply for labor arbitration.

First of all, you should go to the labor bureau in the city where you are located to file a complaint against your company, and the labor inspection brigade will file a case and leave your basic information. Then the waiter will go to your company to investigate and find out that the matter is true, and they will intervene to mediate and warn you that the company's behavior has violated the labor law, and they will enforce it if the company refuses to implement it.

Wage arrears are a common problem that workers can solve by:

1.Report to the labor administrative department (usually the labor management inspection brigade).

2.You can also apply for arbitration directly (the arbitration fee is 200-300 yuan, and if you win, all will be borne by the company).

3.If you are not satisfied with the arbitration result, you can file a lawsuit in court within 15 days after receiving the arbitration letter.

4.According to the provisions of the state, in the event of arbitration or litigation, you may request that the wages and remuneration of the employee be paid in full within the prescribed time, and that an additional economic compensation equivalent to 25% of the wages and remuneration be paid.

2. The labor contract is terminated in arrears of wages

According to Article 38 of the Labor Contract Law, if an employer fails to pay the employee in full and in a timely manner, the employee may terminate the labor contract and may also claim that the employer pay severance to the employee.

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. If the monthly wage of a worker is three times higher than the average monthly wage of the employee in the previous year announced by the people of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard of severance shall be paid to him at the rate of three times the average monthly wage of the employee, and the maximum period of payment of severance shall not exceed 12 years.

Through the above explanation, we can understand that it is illegal for the employer to default on wages, and the employee can apply for labor arbitration to demand compensation from the company.

Reminder: The Civil Code will come into force on January 1, 2021, and the Marriage Law, Inheritance Law, General Principles of the Civil Law, Adoption Law, Guarantee Law, Contract Law, Property Law, Tort Liability Law and General Provisions of the Civil Law will be repealed at the same time.

The arrears of wages violate Article 50 of the Labor Law, which states that "wages shall be paid to the worker in monetary form on a monthly basis." shall not deduct or delay the wages of workers without reason", which infringes upon the legitimate rights and interests of workers.

In accordance with Article 38 of the Labor Contract Law, which stipulates that "an employer may terminate a labor contract under any of the following circumstances: (2) the employer fails to pay labor remuneration in full and in a timely manner", the employee may terminate the labor contract with the employer, and has the right to claim economic compensation for the period of services provided and pay back the arrears of wages.

A "Letter on Termination of Labor Contract" or "Notice of Termination of Labor Contract" may be submitted to the employer to clearly inform the employer that the employer is in arrears of wages, which violates the provisions of Article 50 of the Labor Law and infringes upon the legitimate rights and interests of the employee. In accordance with Article 38 of the Labor Contract Law, "the employee may terminate the labor contract under any of the following circumstances: (2) the employer fails to pay the labor remuneration in full and in a timely manner", the labor contract with the employer is terminated, and in accordance with Article 46, "the employer shall pay economic compensation to the employee under any of the following circumstances:

1) If the worker terminates the labor contract in accordance with the provisions of Article 38 of this Law", he claims economic compensation for the period of service provided (the average salary of the 12 months prior to the termination of the labor contract multiplied by the length of service) and the arrears of wages.

The resulting dispute is a labor dispute and can be resolved by applying for labor arbitration.

If an employer is in arrears of wages, it may apply to the labor arbitration court at the district or county level (located in the Human Resources and Social Security Bureau) where the unit is located for labor arbitration and request back wages.

Wage arrears are not a statutory reason for an employee to terminate a labor contract. If the employee unilaterally terminates the labor contract under this circumstance, it is still a breach of contract and he shall bear the liability for breach of contract.

In this case, there is no financial compensation. Only if the employer takes the initiative to terminate the labor contract, there will be economic compensation.

If the employer does not give you a resignation certificate, you can only negotiate with the employer to resolve the issue, and there is no better way.

Here's how the contract was signed.

Otherwise, you can't do it.

After all, the reality is different.

You compare more, otherwise you can't do it.