Compensation is payable for the termination of a de facto employment relationship

1. A two-year contract and a four-month de facto labor relationship can be purchased as an economic compensation for one year's work to compensate for one month's salary, that is, three months' wages.

2. If the company does not pay, you apply to the labor and social security department where the company is located for labor arbitration.

3. If an employer terminates a labor contract in accordance with the provisions of the Measures for Economic Compensation for Violation or Termination of a Labor Contract, the employer shall pay the employee an economic compensation equivalent to one month's salary for every full year of service in the employer, up to a maximum of 12 months. If the working time is less than one year, the severance shall be paid at the rate of one year.

First of all, I don't know the law ...But the new labor law doesn't stipulate this.

And your question is too unclear, what is the four months of actual labor, how to protect you without a contract?

Make a few suggestions.

1.Whether your company is private or state-owned.

2.If you really have a problem, you can go to the ** or the legal aid department in your street, it should be free.

3.You said you signed a one-year contract, which seems to be nothing wrong.

4.If you really want to terminate the contract with you, there is nothing to do at present, many large companies, or some enterprises with more than ten years of service, workers have terminated the contract a few years ago and signed anew, these things have been a lot in the newspaper recently, but I haven't seen any solution, mainly look at the best coordination ability, if it really doesn't work, stupidly say a word, see if you are important to the unit, if it belongs to the general, then you are dangerous

Good luck

This is a serious violation of labor law, and you can apply to the labor and social security department where your company is located for arbitration. It is illegal for the employer to terminate the labor contract with you in this way!

Legal analysis: According to the actual situation, as long as the current labor contract relationship can be proved and the circumstances of economic compensation are met, the employer can be required to pay economic compensation 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.

Legal basis: Article 46 of the Labor Contract Law of the People's Republic of China.

Under any of the following circumstances, the employer shall pay economic compensation to the employee:

1) The worker is informed of the first dismissal of 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) Except in the case where the employer maintains or improves the labor contract and renews the labor contract under the agreed conditions, and the employee does not agree to renew the labor contract, the fixed-term labor contract shall be terminated in accordance with the provisions of Paragraph 1 of Article 44 of this Law;

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.

A de facto labor relationship refers to a labor and employment relationship formed without a written contract or a valid written contract, as well as a labor and employment relationship reached by oral agreement. No severance shall be paid for the termination of the de facto labor residual relationship. The employment contract is the legal basis for the establishment of an employment relationship between the employee and the employer, and the written contract is the only legal form for the establishment of an employment relationship between the two parties.

If the employer deliberately delays the signing of the labor contract after recruiting the employee, it is at fault, and in order to punish such irregular employment behavior, the employer shall pay the employee severance in this case.

Legal basis] Article 97 of the Labor Law stipulates that if an invalid contract concluded due to the reasons of the employer causes damage to the employee, the employee shall be liable for compensation.

1. Whether to pay severance when the de facto labor relationship is terminated.

The question of whether severance should be paid in a de facto employment relationship is open to the public, as the law does not clearly stipulate it.

Article 46 of the Labor Contract Law [Economic Compensation] In any of the following circumstances, the employer shall pay economic compensation to the employee:

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;

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) 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, the fixed-term labor contract is terminated in accordance with the provisions of Paragraph 1 of Article 44 of this Law;

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.

2. Notice of termination of labor relations.

Due to the following reasons, in accordance with the Labor Law of the People's Republic of China and relevant national laws and regulations, the Company decides to terminate (terminate) the labor contract (relationship) with the employee on the date of xx-xx-xx

1) The employee resigns and terminates the labor relationship.

2) The conditions for the termination of the employment relationship have occurred as agreed by both parties.

3) Terminate the labor relationship in accordance with the provisions of Article 1, Paragraph 1 of the Labor Law.

4) Due to the expiration of the term of the labor contract.

Name of the unit (stamped).

Date. 3. Under what circumstances is a de facto employment relationship?

The employment relationship shall be established if the employer recruits a worker without entering into a written labor contract, but at the same time meets the following circumstances:

1) The employer and the worker meet the entity qualifications prescribed by laws and regulations;

2) The labor rules and regulations formulated by the employer in accordance with the law shall apply to the workers, and the workers shall be subject to the labor management of the employer and engage in paid labor arranged by the employer;

3) The labor provided by the worker is an integral part of the employer's business.

Legal analysis: Whether to pay severance for the termination of the de facto labor relationship needs to be specifically analyzed, if the employee voluntarily terminates the labor contract, then not, if the employer proposes to terminate the labor contract relationship, the corresponding severance shall be paid.

Legal basis: Article 47 of the Labor Contract Law of the People's Republic of China Article 47 The calculation of economic compensation shall be paid to the employee according to the standard of one month's salary for each full year of the employee's service in the unit. If it is more than six months but less than one year, it shall be calculated as one year; If it is less than six months, the worker shall be paid half a month's salary.

The Reply of the General Office of the Ministry of Labor and Social Security on the Question of Whether Severance Should Be Paid for the Termination of a de Facto Labor Relationship, issued by the General Office of the Ministry of Labor and Social Security on November 26, 2001, stipulates that "if the employee continues to work for the original employer after the expiration of the labor contract and the employer does not raise any objection, the existence of a de facto labor relationship between the employee and the original employer is not a de facto labor relationship, and the Kuanzai does not mean that the two parties have renewed a new labor contract within the time limit agreed in the original labor contract." If one party proposes to terminate the employment relationship, it shall be deemed to have terminated the de facto employment relationship."

The above-mentioned provisions make it clear that a de facto employment relationship can be terminated in accordance with the law, but do not stipulate whether an employer should pay severance if the de facto employment relationship is terminated or terminated. In this regard, there are no very clear provisions in the law. Only the Reply of the General Office of the Ministry of Labor on the Issue of Employees' Claims for Economic Compensation for Employees Who Do Not Sign Labor Contracts (Lao Ban Fa [1996] No. 181) stipulates that "after a de facto labor relationship has been formed between the employer and the employee, and the employer deliberately delays the conclusion of the labor contract and terminates the labor relationship with the employee, if the employee applies to the labor dispute arbitration commission for arbitration after the labor dispute arises with the employer due to the employee's request for economic compensation, the Qi Meng Labor Dispute Arbitration Commission shall accept it. and in accordance with the relevant provisions of Article 98 of the Labor Law, the Measures for Economic Compensation for Violation and Termination of Labor Contracts (Lao Bu Fa No. 1994 481) and the Measures for Compensation for Violations of Labor Law and Relevant Labor Contract Provisions (Lao Bu Fa No. 1995 No. 223).

According to this interpretation, the employer shall pay severance for the termination or dissolution of the de facto employment relationship if certain conditions are met.

1. How to prove the existence of a de facto employment relationship.

In the event that the employer does not sign an employment contract with the employee, the employee may use the following evidence to prove the existence of an employment relationship:

1. Social insurance records.

Social insurance payment records are a strong piece of evidence to prove the existence of an employment relationship.

2. Payroll records.

Such as stamped pay slips, bank records of salary cards.

3. Badge and access control card.

4. Mortgage income and tax payment certificate.

You can ask the company to issue a certificate of income on the grounds of a loan to buy a house or a car.

5. Timecard.

Preferably original, with the company's official seal or something.

6. Commercial contracts, documents, and power of attorney signed on behalf of the company.

It is better to have originals.

Listening to your question, I feel that your company has not signed a labor contract with the employee. If a fixed-term labor contract expires or a labor relationship is terminated by law, a certain amount of severance is normally required to be paid. As an HR, you should communicate well with the employing department and try to avoid this situation.

Communicate more with employees and let them resign on their own, so that you can save a lot of financial compensation.