How to settle a claim for an indefinite labor contract if you are dismissed

This question is too simple, since the promulgation of the new labor law in 08, there is almost no loophole for this kind of enterprise.

First of all, you are already a regular employee of the company. As long as you continue to work for the company after the probationary period, you can be considered a regular employee of the company even if you have not signed an employment contract. If the term of the labor contract is more than three months but less than one year, the probationary period shall not exceed one month; If the term of the labor contract is more than one year but less than three years, the probationary period shall not exceed two months; For fixed-term and indefinite-term labor contracts of more than three years, the probationary period shall not exceed six months.

Secondly, from the beginning of the formal employment, if you do not sign an employment contract, then the actual working hours will be double the salary. The law only stipulates that if the employee has not signed a written labor contract for more than one month but less than one year from the date of employment, the employer shall pay twice the monthly wage, and there is no specific provision on the composition of wages.

Finally, terminate the employment contract without cause (although you do not have a written employment contract in this case, but in fact the employment contract has been formed), according to the Labor Law:

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.

Article 47 Economic compensation shall be paid to the worker according to the number of years he or she has worked in the unit 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.

You can claim compensation.

The state now encourages arbitration of labor disputes, and labor dispute arbitration is free of charge. You can negotiate with your company first, and if the negotiation fails, you can go to your local labor dispute arbitration committee to apply for arbitration, so that not only the above problems can be resolved, but also the insurance you should have will pay you.

You can find help from your local labor arbitration department.

The amount of compensation to be paid for termination of an indefinite contract depends on the circumstances:

1. If the employer and the employee terminate the contract through consultation, the employer shall pay the employee economic compensation according to the number of years the employee has worked in the employer and the standard of one month's salary for each full year;

2. If the employer dissolves or terminates the labor contract in violation of the law, it shall pay compensation to the employee in accordance with twice the above-mentioned economic compensation standard.

Circumstances encountered 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 other party does not take termination measures. 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, and 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 the contract 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 47 of the Labor Contract Law of the People's Republic of China.

Calculation of severance compensation] Severance compensation 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. If it is more than six months but less than one year, the failure of the manuscript 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.

The term "monthly wage" mentioned in this article refers to the average salary of an employee in the 12 months prior to the termination or dissolution of the labor contract.

Article 87.

Legal Liability for Breach of Dissolution or Termination of Labor Contract] If an employer dissolves or terminates a labor contract in violation of the provisions of this Law, it shall pay compensation to the employee in accordance with twice the standard of economic compensation provided for in Article 47 of this Law.

There is basically no difference between an indefinite-term labor contract and a fixed-term labor contract when a labor dispute involves compensation or economic compensation. Regardless of whether the contract is fixed-term or indefinite-term, if the employee leaves the company due to personal reasons, the employer does not need to compensate or compensate the employee.

The basic conditions, economic compensation and compensation standards for the termination of fixed-term and indefinite-term labor contracts are the same, and the difference between the two parties is that there is no legal form of termination of the labor contract after the signing of the indefinite labor contract. However, when the labor contract expires, the enterprise needs to pay economic compensation if it does not renew the contract, so the actual difference between the two is not big, and the fixed-term labor contract is nothing more than one more legal termination method for the enterprise to terminate the contract and pay economic compensation, which is a relatively cost-effective way to terminate the contract.

When a fixed-term employment contract expires, the enterprise may choose not to renew the contract and terminate the contract; An enterprise with an indefinite-term labor contract has no means to terminate or renew the labor contract, but can only terminate it through negotiation with the employee, and if the employee agrees to terminate the labor contract through negotiation, the compensation payment can be terminated, and if the employee does not agree to terminate the labor contract through negotiation, the enterprise cannot terminate it by force.

Under a fixed-term contract, when the employer no longer wants to retain an employee, it can not renew the employment contract when the employment contract expires, and only pay severance payment. However, under an indefinite-term employment contract, there must be a statutory reason for dissolving or terminating the employment contract, and if there is a statutory reason, only severance is paid, and if there is no statutory reason, compensation must be paid, i.e., twice the severance payment.

Extended Information: Under the new Employment Contract Law, fixed-term and indefinite-term employment contracts are in many respects the same:

1. The conditions for rescission and termination are the same, and both fixed-term and indefinite-term labor contracts can be dissolved and terminated under statutory circumstances.

2. The standard of economic compensation and compensation for demolition and erection is the same, and if the labor contract is terminated in accordance with the law, the economic compensation may be paid or not paid in accordance with the provisions of the new labor contract law; Those who illegally terminate the labor contract shall be compensated according to the standards stipulated in the Labor Contract Law. In other words, an open-ended contract is the same as a fixed-term contract in terms of rescission and termination conditions and economic compensation, so there is no need for an enterprise to find ways to circumvent an open-ended employment contract.

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

1. If the indefinite term labor contract is terminated, if it is agreed upon through consultation, the two parties shall negotiate the economic compensation.

2. If the employer unilaterally terminates an indefinite-term contract, it is an illegal termination, and the employee may request the resumption of the labor relationship, or require the employer to pay double the severance according to the illegal termination of the contract, that is, the severance payment of two months' wages a year.

The severance payment for termination of an employee without an indefinite-term employment contract is the same as that of a fixed-term employee, and the base amount is determined according to the average salary of the 12 months prior to the termination of the labor contract, and the month of compensation is determined according to the number of years of service with the company. That is, the following two reference conditions:

1. Years of working in the company;

2. The average salary of the previous 12 months before the termination of the labor contract.

Final compensation amount = average salary for the previous 12 months prior to termination of employment 2.

Therefore, for employees with indefinite term employment contracts, if they are terminated, they can claim double severance payments, unlike fixed-term employees.

If the company needs to lay off employees on a large scale, it should give priority to retaining employees who have signed an indefinite-term labor contract.

According to the provisions of the Labor Contract Law, when an employer is not allowed to lay off employees, it shall explain the situation to the trade union or all employees 30 days in advance, and after listening to the opinions of the trade union or employees, the personnel reduction plan may be reported to the labor administrative department, and the following personnel shall be retained preferentially when the personnel are reduced:

1) Entering into a fixed-term labor contract with the unit for a longer period of time;

From here, we can see that if the employer needs to lay off employees, it must give priority to retaining employees for an indefinite period of time.

How to compensate for being laid off after signing an indefinite contract? If an employee is laid off by the company and does not receive the compensation he or she deserves, he or she should protect his rights and interests through legal means.