Some questions about labor disputes. 5

Article 46 of the Labor Contract Law The employer shall pay economic compensation to the employee under any of the following circumstances:

1) The worker terminates the labor contract in accordance with the provisions of Article 38 of this Law;

2) The employer proposes to terminate the labor contract to the employee in accordance with the provisions of Article 36 of this Law and terminates the labor contract through consultation with the employee;

3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law;

4) The employer terminates the labor contract in accordance with the provisions of the first paragraph of Article 41 of this Law;

5) Terminating a fixed-term labor contract in accordance with the provisions of Paragraph 1 of Article 44 of this Law, except in the case where the employer maintains or improves the agreed conditions of the labor contract and the employee does not agree to renew the labor contract;

6) Termination of the labor contract in accordance with the provisions of Paragraphs 4 and 5 of Article 44 of this Law;

7) Other circumstances provided for by laws and administrative regulations.

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.

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 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.

Apply for labor arbitration, require the employer to pay double the salary for not signing the contract, and if the employer illegally terminates, you can demand compensation.

The cause of the case] In early November 2018, He joined a company in Beijing with a monthly salary of 20,000 yuan.

In late April 2020, He was called to the office by the company's leaders to talk, saying that He's work ability was insufficient, and the department head and colleagues had a lot of complaints about him.

He felt very disappointed when he heard this, and his depressed mood made He lose his mind, so he filled out the "Resignation Application Form" in accordance with the requirements of the company's personnel and went through the resignation procedures.

Case claims] He consciously fell into the company's "trap" after the incident, and applied to the labor arbitration commission in June, requesting the arbitration commission to determine that the company was illegally terminated and pay 60,000 yuan in compensation for illegal termination.

During the trial, the company's defense file, Hui Shi, claimed that He had voluntarily resigned, and the company had not made any dismissal, so he said that there was an illegal dismissal, and presented the "Resignation Application Form" filled in by He himself.

He admitted that he filled in the "Resignation Application Form" in accordance with the company's requirements, but did not fill in the reason for resignation on the "Resignation Application Form", and the company's personnel management process, whether it was dismissed or voluntarily resigned, the employee filled in the "Resignation Application Form" is a necessary procedure, so it does not mean that he is willing to resign.

Trial Result] Because the "Resignation Application Form" provided by the company did not reflect the reason for He's resignation, and at the same time, the company did not have other materials, such as the resignation letter submitted by the employee, to prove that the employee himself submitted the resignation.

Therefore, the company's statement that "according to the company's resignation process, only employees who resign by themselves will fill in this kind of **" was not accepted.

Final result: The arbitration committee ruled that the company was illegally terminated and should pay 60,000 yuan in compensation for illegal termination to He, and the company was dissatisfied with the award and sued to the court, and the judgment of the first and second instance was consistent with the arbitration result.

Lawyer's Analysis] Disputes between employees and companies due to the termination of labor relations have always been the main contradiction in labor dispute cases, in such cases, the employee is on the disadvantaged side, and it is more difficult to provide evidence once he leaves the company, so according to the provisions of Judicial Interpretation 1 of Labor Disputes:

The employer bears the burden of proof in the event of a labor dispute arising from the employer's decision to dismiss, dismiss, dismiss, terminate the labor contract, reduce the labor remuneration, calculate the employee's working years, etc.

In this case, it is not enough for the company to prove that the employee resigned voluntarily on the basis of a Resignation Application Form that did not fill in the reason for resignation, and even if the company is unable to provide the employee's resignation letter or resignation application, it is necessary to ask the employee to indicate the reason for resignation on the Resignation Application Form.

Article 82 of the Labor Contract Law stipulates that if an employer fails to conclude a written labor contract with an 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.

Wage arrears, refusal to pay overtime pay, economic compensation, additional compensation] Article 85 of the Labor Contract Law stipulates that if an employer falls under any of the following circumstances, the labor administrative department shall order it to pay labor remuneration, overtime pay or economic compensation within a time limit; If the labor remuneration is lower than the local minimum wage, the employer shall be ordered to pay additional compensation to the employee at the rate of 50% to 100% of the amount payable

1) Failure to pay the labor remuneration of the worker in full and in a timely manner in accordance with the provisions of the labor contract or the provisions of the state;

2) Paying wages to workers at a rate lower than the local minimum wage standard;

3) arranging overtime work without paying overtime pay;

4) Dissolving or terminating a labor contract without paying economic compensation to the worker in accordance with these Regulations.

Failure to pay social insurance and economic compensation] Paragraph 1 of Article 46 of the Labor Contract Law stipulates that the employer shall pay economic compensation to the employee under any of the following circumstances: failure to pay social insurance for those who have repented of their work in accordance with the law (Article 38, Paragraph 3).

It should be advantageous to apply if you can provide a salary statement or salary discount for expenses or a witness statement from a co-worker.

1. It is not a specific time period, but within one year from the date of signing and not signing 2. If the lawsuit is invalid, there is no problem in arbitration.

3. It will not be supported. The fact is very simple, the employee joined the company in 07 years and did not sign a contract, and the law came into effect in February 08, and the child can claim double wages during the one-year period from February 08 to February 09. However, it was not asserted, and it did not meet the circumstances that could be excluded due to arrears of labor remuneration, so the effectiveness of the lawsuit had expired in 2011.

After February 09, it is deemed to have signed an indefinite period, and the contract period has been determined, and all enterprises no longer bear the responsibility of double wages, so there is no double problem after February 09.

1. What is the reason for applying for double salary? According to the Labor Contract Law, there are only two possibilities for double wages: one is that the double salary without signing the labor contract is only 11 months at most, and the other is that the employer illegally terminates the contract and compensates double the liquidated damages, but the latter is calculated on an annual basis rather than a monthly basis, or does the labor contract stipulate double wages compensation for breach of contract?

2. According to the Labor Dispute Mediation and Arbitration Law.

Article 47 Except as otherwise provided in this Law, the arbitral award shall be final and effective from the date of its issuance

1) Disputes over the recovery of labor remuneration, medical expenses for work-related injuries, economic compensation or compensation, which does not exceed the amount of the local monthly minimum wage standard for 12 months;

2) Disputes arising from the implementation of national labor standards in terms of working hours, rest and vacation, social insurance, etc.

Article 48 Where a worker is dissatisfied with an arbitral award provided for in Article 47 of this Law, he may file a lawsuit with the people's court within 15 days from the date of receipt of the arbitral award.

As a worker, he has the right to sue if he is dissatisfied with the arbitration, which is a legal right and cannot be deprived.

3. This practice of labor arbitration is actually a bit problematic, and it should be ruled that the expired part will not be supported after being accepted together, rather than not being accepted on the expired part.

And according to the Labor Contract Law.

Article 27 The limitation period for applying for arbitration of labor disputes shall be one year....

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 the other party has legitimate reasons to believe that the statute of limitations has been suspended, the court may of course accept or even support the request.

I am a labor arbitrator in a city in Inner Mongolia, and according to my case-handling rules, the arbitration statute of limitations for you to apply for double wages has not expired.

1. "The date on which the parties knew or should have known that their rights had been infringed" should be the second day of one year from the date of employment, that is, October 2010, and when the arbitration statute of limitations extends to October 2011, you should still be within the arbitration statute of limitations for applying for double wages. (Remember, when the arbitrator asks you if you know that the company has not signed an employment contract with you, you will answer that it will take more than a year to do so.) Double pay is the sum of your entire salary from November 2009 to October 2010.

2. If the employer does terminate the labor relationship with you without reason, and you do not have the circumstances stipulated in Articles 39 and 40 of the Labor Contract Law, you can apply for compensation. (You have to gather evidence for this).

Right. However, Article 14, Paragraph 3 of the Labor Contract Law stipulates that "if an employer fails to conclude a written labor contract with an employee within one year from the date of employment, it shall be deemed that the employer and the employee have entered into an indefinite labor contract."

The court did not support its claim for double wages after 2010 on the following grounds: Labor Contract Law Since its implementation on January 1, 2008, you have formed an indefinite employment contract with the employer, so the claim for double wages in 2010 is not supported.

The statute of limitations for labor disputes is one year, so only disputes after 2010 are accepted, and the previous disputes have expired and are therefore not accepted.

Double wages are conditional, i.e. the employee is not covered with the required insurance, and the company dismisses the employee.

Only double wages for almost one year are supported.

Labor disputes can be submitted to the court or labor arbitration. The court is higher than labor arbitration, and if you are not satisfied with the arbitration, you can appeal to the court, and the court should not refuse to accept it.

It's too complicated, I don't know if the temporary labor contract has been signed.

1.If the local minimum wage standard for the current year is lower than the local minimum wage standard, the labor law stipulates that the labor administrative department shall order the payment of the difference, and if the payment is not made within the time limit, the compensation shall be paid according to 50% to 100% of the amount payable.

2.The Labor Contract Law stipulates that a written contract shall be concluded within one month from the date of employment, and an indefinite term labor contract shall be deemed to have been concluded if the written contract has not been concluded for one month but less than one year. At the same time, you are paid twice your salary every month. Until the conclusion of an indefinite employment contract.

3.Try to negotiate with the company to settle the problem, and if the negotiation fails, apply for labor arbitration.

You don't have to rush too much! The priority now is to give birth with peace of mind! If energy allows, seize the time to collect the proof of labor relationship with the unit!

Such as attendance, payroll records, work clothes. And proof of your time at work! Number plates, etc., this is the most important thing to solve at present!

I suggest that you file a labor arbitration after giving birth to a child and taking maternity leave! You can get a lot of compensation! For example, social security in recent years, double salary without signing a labor contract, minimum wage compensation, the cost of giving birth to a child, etc.! These wait until the need for arbitration is slowly coming!

In a word, collect strong evidence and protect the fetus with peace of mind.

You can apply for labor arbitration directly at the labor arbitration commission.

1. The salary paid by the company must be lower than the local minimum standard, because the minimum wage standard in Wuhan is 900, and I think the minimum wage standard in your place should not be only 550. 2. The company does not sign a labor contract with you is also a violation of the new labor contract law, Article 10 A written labor contract shall be concluded to establish a labor relationship. 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.

Article 82 Where an employer fails to conclude a written labor contract with a worker for more than one month but less than one year from the date of employment, it shall pay the worker twice the monthly wage. If an employer violates the provisions of this Law by failing to conclude an indefinite-term labor contract with an employee, it shall pay the employee twice the monthly salary from the date on which the indefinite-term labor contract should have been concluded. So you will be compensated twice your salary until the time of signing the contract.