1. Can the long-term waiting company terminate the labor contract?
No, waiting for a post does not mean dissolving labor relations. Living expenses should be paid during the waiting period, and economic compensation should be paid according to law when labor relations are terminated.
If the employing unit arranges employees to wait for posts due to temporary difficulties in production and operation, and the salary payment period does not exceed one, the employing unit shall pay employees' wages according to the standards agreed in the labor contract; If the wage payment period is more than one, the wage payment standard may be reduced after consultation with the workers, but it shall not be less than 70% of the local minimum wage standard; If negotiation fails, both parties may terminate the labor contract, and the employer shall pay economic compensation in accordance with the regulations.
Two, the employer to terminate the labor contract usually has the following circumstances:
1. The employer terminates the labor relationship with the employee without justifiable reasons and does not pay economic compensation. The laborer does not have the circumstances stipulated in Article 39 of the Labor Contract Law, and the employer's behavior belongs to the illegal termination of the labor contract stipulated in Article 87 of the Labor Contract Law, and compensation should be paid, that is, two months' salary should be paid for each year of work;
2. If the termination of the labor relationship between the employer and the employee conforms to the provisions of Article 46 of the Labor Contract Law, it shall pay economic compensation, that is, one month's salary for every full year of work; In line with Article 40 of the Labor Contract Law, if the employee is not notified 1 month in advance, he shall pay 1 month's salary as a payment in lieu of notice;
3. The laborer has the conditions stipulated in Article 39 of the Labor Contract Law. If the employer proposes to terminate the labor relationship, it does not need to pay any economic compensation, nor does it need to notify in advance. The employer needs to provide evidence and notify the employee in writing to terminate the labor relationship.
Article 39 of the Labor Contract Law may terminate the labor contract under any of the following circumstances:
(a) during the probation period, it is proved that it does not meet the employment conditions;
(two) a serious violation of the rules and regulations of the employer;
(three) serious dereliction of duty, corruption, causing great damage to the employer;
(4) The laborer establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the unit, or the employer refuses to correct it;
(5) The labor contract is invalid due to the circumstances specified in Item 1 of Paragraph 1 of Article 26 of this Law;
(6) Being investigated for criminal responsibility according to law.
Three, the conditions for the employer to terminate the labor contract
If the laborer is proved to be incompetent, and is still incompetent after training or post adjustment, the employer shall relieve the burden of proof of the labor contract. According to the provisions of Article 40 of the Labor Contract Law, if the employee is proved to be incompetent and still incompetent after training or job adjustment, the employer may terminate the labor contract after fulfilling the notification procedure. The following two conditions are required for the dissolution of the labor contract by applying these provisions:
1, the worker was proved incompetent.
Incompetence means that there is evidence to prove that workers can't complete the tasks agreed in the labor contract or the workload of the same type of work and position as required. This requires employers to make clear the work content of employees when signing labor contracts with employees, and also to make clear the workload for specific industries. If there is no clear workload when signing a labor contract, it can only be determined by referring to the workload of the same type of work and the same position. Generally speaking, it should refer to the average workload of the same type of work and the same post, not the highest workload of the same type of work and the same post. Therefore, providing the average workload of the staff in the same post in this unit becomes an important evidence to prove that the workers are competent for the work.
2, after training or job transfer, still can't do the job.
In other words, there is a procedure for the employer to terminate the labor contract: it must be trained or transferred first, and if it cannot meet the new post requirements, it can terminate the labor contract. It should be pointed out that workers must be able to prove their incapacity. In order to prevent the risk of being unable to provide evidence when dissolving the labor contract, enterprises need to determine the workload of employees in the labor contract or job description. If employees receive training as a result, they need to save the corresponding training materials.
Four. The burden of proof for terminating a labor contract due to major changes in the objective circumstances on which the labor contract was concluded.
According to Item (3) of Article 40 of the Labor Contract Law, the objective conditions on which the labor contract was concluded have changed significantly, which makes the labor contract impossible to perform. If the employer and the employee fail to reach an agreement on changing the contents of the labor contract through consultation, the employer may terminate the labor contract by using the advance notice procedure. Pay attention to two conditions that must be met at the same time in the specific operation:
1. It is necessary to prove that the original labor contract cannot be performed due to major changes in objective conditions.
The change of objective circumstances refers to the failure to perform all or part of the terms of the labor contract due to force majeure or the relocation, merger and cancellation of the higher authorities. , resulting in the labor contract can not be fulfilled or can not be fully fulfilled. If the parties disagree on whether a certain situation is a "major change in the objective situation", the labor dispute arbitration institution and the court shall make a ruling.
2. It is necessary to prove that no agreement has been reached on changing the contents of the labor contract or dissolving the labor contract.
When the employer really needs to terminate the labor contract due to major changes in objective conditions, it must pay attention to communication and consultation with the employees, that is, it must first negotiate with the employees to change the labor contract. The employer may terminate the labor contract only after the negotiation fails to reach an agreement on changing the labor contract.
In fact, if you wait for a job for a long time, your company will not always pay wages according to normal standards. Employees can voluntarily propose to terminate the labor contract, but the company cannot terminate the labor relationship privately on the grounds of waiting for the post. If the company is in this state for a long time, it is beneficial for both employers and employees to terminate the labor contract through consultation. But the actual problem is that if the company has difficulties in normal operation, whether it has the ability to pay compensation is also a problem that employees need to face up to. There are online lawyers. If you have any questions, please feel free to consult.