title
If the employee resigns 30 days in advance, the company may terminate the labor relationship in advance according to the work arrangement.
Brief introduction of the case
For personal reasons, Tan decided not to work in the company and resigned from the company 30 days in advance. After Tan resigned 10 days, the company informed him to terminate the labor relationship and went through the resignation procedures with him. Afterwards, Tan was very angry about this and thought that he had notified the company 30 days in advance according to the law. Instead, the company mistreated itself, let him leave his job for less than 30 days, and deliberately refused to pay the salary he deserved that month. The company's behavior was illegal termination of the labor contract, requiring the company to pay compensation for illegal termination of the labor contract.
Arbitration result
Reject Tan's arbitration request.
case analysis
According to Article 37 of the Labor Contract Law, "The employee may terminate the labor contract by notifying the employer in writing 30 days in advance", which stipulates the procedure for the employee to unilaterally terminate the labor contract. In order to protect the rights and interests of workers, the law gives workers the right to terminate the labor contract without reason, that is, workers can unilaterally exercise the right to terminate, but the right to terminate must comply with legal procedures, that is, to fulfill the obligation of "notifying the employer in writing 30 days in advance", so that the employer has sufficient time to hand over the relevant work or find someone to replace it, so as to avoid the possible impact on the company's business development due to the resignation of workers. However, the existing laws and regulations do not stipulate that the employer must wait until the employee notifies him to resign for 30 days before terminating the labor relationship. Therefore, if the company believes that Tan's resignation will not have a certain impact on the company's production according to the needs of the work, it can inform Tan to leave in advance and go through the resignation procedures, which is the company's exercise of employment autonomy and does not belong to the illegal termination of labor relations.
Watch industry tourism
title
If the employee terminates the labor contract without reason during the probation period, the employer shall pay economic compensation.
Brief introduction of the case
Wang joined a school as a life teacher, and the school signed a labor contract with Wang. The contract stipulates that Wang's post is a life teacher with a probation period of one month. However, in the third week of Wang's work, the school terminated the probation labor relationship with Wang on the grounds that Wang had problems in communication and coordination and could not be competent for his own employees, but the school failed to provide relevant evidence of job requirements and Wang's incompetence.
Arbitration result
If the school is found to have terminated illegally, it is necessary to pay compensation.
case analysis
Employers generally believe that the probation period is the assessment period for employees who are ready to join the company. During this period, as long as they think that the employee does not meet their own employment conditions or standards, they can arbitrarily terminate the labor relationship with the employee without having to bear more legal responsibilities, but this is wrong. In order to prevent the employer from dissolving the labor relationship with the laborer without authorization on the grounds of probation, resulting in frequent labor disputes during the probation period, Article 21 of the Labor Contract Law stipulates that the employer shall explain the reasons to the laborer when dissolving the labor contract during the probation period. If the employer wants to terminate the probation period, it must prove that the employee does not meet the employment conditions of the employer during the probation period according to the provisions of Article 39 of the Labor Contract Law. How to prove that new employees do not meet the employment conditions, enterprises need to provide evidence and proof materials that have clearly informed employees of their jobs, job responsibilities, specific quantitative standards for job responsibilities assessment during probation period, and the fact that employees are incompetent. Otherwise, if the enterprise terminates the employee's labor contract without justifiable reasons and sufficient evidence during the probation period, it shall pay the employee compensation for illegally terminating the labor contract according to law.
Case 3
title
After signing the second labor contract with the enterprise, if the employee fails to renew it at the expiration date, it cannot be regarded that both parties have concluded an open-ended labor contract.
Brief introduction of the case
Lumou joined a logistics company in August 20 17 and signed a two-year labor contract. On August 20 19, the second labor contract was renewed with the company for two years. After the expiration of the second labor contract, Lu continued to work in the company, and the two sides did not renew the third labor contract. The personnel manager of the company believes that after signing the second labor contract, both parties have signed an open-ended labor contract, so they have not signed a third labor contract with Lu. Accordingly, Lu applied for labor arbitration in February, 2002165438, demanding that the unit pay twice his salary because he did not sign an open-ended labor contract with him.
Arbitration result
The employer needs to pay the second salary that Lu has not signed the labor contract.
case analysis
It is deemed that the employer and the employee have concluded an open-ended labor contract, which refers to the third paragraph of Article 14 of the Labor Contract Law. "If the employer fails to conclude a written labor contract with the employee within one year from the date of employment, it shall be deemed that the employer has concluded an open-ended labor contract with the employee." However, Lu belongs to the situation stipulated in the second paragraph of Article 14 of the Labor Contract Law. If the laborer does not have the provisions of Articles 39 and 40, items 1 and 2 of this Law, he shall conclude an open-ended labor contract, unless the laborer proposes to conclude a fixed-term labor contract. Therefore, according to Article 82 of the Labor Contract Law, the logistics company must conclude an open-ended labor contract with Lu. After the expiration of the second labor contract, if the logistics company does not sign an open-ended labor contract with Lu, it shall pay the second salary for Lu's unsigned labor contract.
Case 4
title
Performance awards have been stipulated in the rules and regulations, and employers need to pay them on time.
Pay the porter.
Brief introduction of the case
Applicant Li has been the department manager of the marketing business department of a company since February, 20021year, and concurrently served as the administrative department manager since March, 20021year. In April of 20021year, Li received a monthly performance bonus of 5,000 yuan from the marketing manager. Other relevant personnel of the administration department also received a performance bonus of 3,000 yuan from the administration department, but the company did not give Ali a performance bonus from the administration department. As for the reasons for the non-payment, the company argued that although the Notice on Back Office Reward Scheme formulated by the company rewarded the back office staff of the administrative department, Li only worked part-time, and Li was rewarded by the marketing department, so the bonus of the administrative department would not be cashed repeatedly, but the company had no evidence to prove that there was a rule that performance bonuses could not be collected repeatedly. Therefore, the applicant asked the company to pay him back-office remuneration during his part-time job as the manager of the administrative department.
Arbitration result
During the period when the applicant concurrently serves as the manager of the administrative department, the company needs to pay Ali a backstage reward of 3,000 yuan.
case analysis
Incentive system is to formulate incentive measures suitable for enterprises according to their own production, operation and characteristics. It is hoped that through this move, employees' wage income will be improved, their work enthusiasm will be mobilized and stimulated, and finally more production benefits will be created for the enterprise. The enterprise has formulated a reward system and announced its implementation in the enterprise. When the reward conditions are met, the performance bonus will be distributed to the employees who meet the assessment criteria. The Company's Notice on Back Office Reward Scheme does not stipulate that the reward cannot be repeated, and the applicant has the fact of being the manager of the administrative department. The respondent failed to submit evidence to prove that the applicant failed to perform the duties of the manager of the administrative department, and it was justified that Li was paid for different positions while completing two jobs. When employees create benefits for the employer, the company should abide by the provisions of the reward scheme, fulfill the principle of contractual integrity, and pay the employee assessment bonus on time according to the standards stipulated in the assessment, so as to improve the enthusiasm of employees and enhance their sense of belonging to the enterprise, thus better promoting the benign development of the enterprise.
Case 5
title
Although there is no difference between workers and employers in the existence of labor relations.
Discussion, but both sides still need to provide evidence to prove.
Brief introduction of the case
Li claimed to have worked in a company on September 20 14. In order to pay social insurance premium, we applied for labor arbitration to confirm the existence of labor relations with the company from September 20 14 to July 20021year, and the company also confirmed the duration of labor relations advocated by Li. After examination, the wage standard advocated by Li was inconsistent with the stipulations of the labor contract and the record of the payroll, and Li admitted that the labor contract and payroll were supplemented later. In addition, both parties confirmed that the company paid Li's salary by bank transfer, but failed to provide payment vouchers such as payroll and bank flow sheet to prove it.
Arbitration result
Reject Li's arbitration request
case analysis
In recent years, the number of cases applying to the arbitration commission for confirmation of labor relations disputes due to payment of social insurance premiums has increased significantly. In order to obtain the legal documents that the arbitration and the court departments determine that the labor relations are effective, many applicants take risks and adopt the method of collusion, collusion or forgery of labor relations with enterprises that do not have labor relations, so as to achieve the purpose of paying back social insurance premiums. In this case, although both parties have no objection to the duration of the labor relationship, they failed to provide relevant authentic and effective evidence to prove the labor relationship, and the lawsuit of confirmation could not be confirmed only by oral expressions of both parties or single evidence. In order to prevent insurance fraud caused by false arbitration, the Arbitration Commission has always taken a strict and prudent attitude towards the confirmation of labor relations facts, intensified the examination of evidence materials, and informed the party with the burden of proof that it is necessary to prove its claim with effective and mutually verified evidence materials. When the parties have no valid evidence and the facts are in doubt, the Arbitration Commission will reject the application for malicious confirmation.
Case 6
title
There is no labor between the contract network anchor and the enterprise.
relationship
Brief introduction of the case
In March 2020, the female anchor Lin signed the "Anchor Brokerage Contract" with a communication company. Her job is to be an anchor on a third-party webcast platform, and she needs to abide by the work system formulated by a communication company, but her commuting time and work place are not fixed. The "Anchor Brokerage Contract" signed by Lin and a communication company stipulates that the applicant has no guaranteed income and will be distributed according to the reward amount. Applicant Lin claims that the relationship with a communication company is labor, not brokerage contract.
Arbitration result
Lin established a brokerage contract relationship with a communication company, and there was no labor relationship.
case analysis
Although a communication company requires Lin to abide by the company system, Lin's live broadcast time is not fixed, and the work place can be arranged by himself. The work content is more casual, not completely managed by the rules and regulations of the communication company, and does not have a complete personality affiliation. The main source of Lin's income is the fans' rewards during the live broadcast, and then the commission is agreed. The uncertain monthly income is different from the relatively fixed monthly salary in labor relations. In addition, the two sides signed the "anchor brokerage contract", which shows that the two sides did not agree to establish labor relations at the beginning. According to Article 1 of the Notice on Establishing Labor Relations issued by the former Ministry of Labor and Social Security, if the employer has not concluded a written labor contract, but meets the following conditions at the same time, it will establish a labor relationship: (1) The employer and the employee meet the subject qualifications stipulated by laws and regulations; (2) Laborers accept the labor management of the employing unit and engage in paid labor arranged by the employing unit, and the labor rules and regulations formulated by the employing unit according to law shall apply; (3) The labor provided by laborers is an integral part of the employer's business. Therefore, the Committee believes that there is no labor relationship between Anchor Lin and a communication company.
Case 7
title
If the commission salary is reduced at will, the company needs to pay economic compensation.
Brief introduction of the case
Tan is a salesman in a company. The labor contract stipulates that Tan's salary is mainly composed of basic salary and business commission. In addition, the two parties also signed a business commission agreement, stipulating that the proportion of business commission is 10% of sales. However, due to the poor performance of the company in the past two years, the company unilaterally reduced the proportion of all employees' business commissions and publicized them through the company. This adjustment also reduced Tan's business commission ratio to 5%, greatly reducing Tan's salary income. To this end, Tan applied for arbitration, demanding that the company pay the commission wage difference, and on this ground, he terminated the labor contract between the two parties and demanded that the company pay economic compensation.
Arbitration result
The company paid the difference of commission salary to Tan, and paid economic compensation to Tan who was forced to terminate the labor relationship.
case analysis
Although the company has publicized the reduction of business commission internally and fulfilled the democratic publicity procedure of the salary system, it cannot arbitrarily reduce the salary of employees on this ground, which is an abuse of the autonomy of enterprise employment. Because labor remuneration is a legally necessary clause in the labor contract and business commission is an integral part of labor remuneration, adjusting the proportion of business commission belongs to changing the content of the labor contract, which can only be changed after the employer and the employee reach an agreement. If the employer unilaterally reduces the proportion of business commission and pays wages according to the reduced proportion, resulting in a significant decrease in the wage income of employees, it is regarded as a serious violation of the rights and interests of workers. According to the second paragraph of Article 38 of the Labor Contract Law, the laborer may propose to terminate the labor contract on the grounds that the enterprise fails to pay the labor remuneration in full and on time, and ask the enterprise to pay economic compensation.
Case 8
title
Workers who have worked in a new unit for less than one year, but have worked continuously for more than one year, can also advocate paid annual leave.
Brief introduction of the case
Yang used to work in a foreign trade company with a length of service of 1 1 year. Since June 2020, I began to work in a current property management company. 202 1 1 Because Yang felt that the company was not suitable for his own development, he negotiated with a property company to terminate the labor relationship. At the same time, Yang proposed to the company that his annual leave in 2020 was not arranged by the company, and the company should pay his annual leave salary. The company strongly disagrees, on the grounds that the prerequisite for enjoying annual leave is that Yang must work in the company for more than 12 months, and now he only works for 7 months, which is not qualified at all. To this end, Yang submitted an application to the Labor and Personnel Dispute Arbitration Commission, asking a property company to pay his annual leave salary of five days.
Arbitration result
The company needs to pay 300% of Yang Ri's salary for 5 days' annual leave.
case analysis
Paid annual leave is the basic welfare for workers to enjoy the right to rest, and enterprises should guarantee it according to law. With regard to the provision of paid annual leave, according to the Implementation Measures for Paid Annual Leave for Enterprise Employees, "employees who have worked continuously for 12 months or more shall enjoy paid annual leave", but in reality, many enterprises have misunderstood this provision and do not arrange annual leave for employees who are dissatisfied with their new job 12 months. According to the General Office of Ministry of Human Resources and Social Security in "About"
The Reply on Relevant Issues (No.2009149 issued by the Ministry of Human Resources and Social Security) specifies the conditions for employees to enjoy paid annual leave if they have worked continuously 12 months or more, including employees working continuously in the same employer 12 months or more, and employees working continuously in different employers/KLOC-0. In other words, as long as Yang works continuously for more than 12 months, he is eligible for annual leave. /kloc-Work experience of more than 0/2 months is not limited to current employers, including different employers with employees before.
In addition, if the employer arranges annual leave without the consent of the employee or the number of days of annual leave arranged for the employee is less than the number of days of annual leave, it shall pay the employee 300% of the daily salary of the days of annual leave, including the salary paid by the employer to the employee during the normal working period.
Case 9
title
The employer and the employee sign a malicious right disposal agreement, which does not affect the compensation for the factual labor relations.
Brief introduction of the case
A courier company needs to recruit couriers because of the rapid growth of business volume. Li entered the company through a friend's introduction, but the company did not sign a written labor contract with Li to avoid employment relationship. The person in charge of the company also verbally told Li that the two sides only established a contractual relationship. Subsequently, a courier company arranged for Li to be responsible for the delivery of express delivery in a certain area, go to work in the courier company on time every day, obey the company's work arrangement and management, and Li calculated the remuneration according to the commission of express delivery business. After half a year, the courier company was not satisfied with Li's work efficiency. In order to avoid compensation, it is proposed to sign the Contract Termination Agreement with Li. At that time, Li also signed an agreement because of his misunderstanding and promised not to pursue any compensation from the company. Afterwards, Li felt that he was misled by the company, so he filed a labor arbitration, demanding that the courier company pay twice the salary of the unsigned labor contract and the compensation for the illegal termination of labor relations. A courier company argued that the contractual relationship between the two parties was clear and definite. After the cooperation, both parties have signed the Agreement on Termination of Contract, which is a contractual relationship, not a labor relationship.
Arbitration result
The courier company paid Li's double salary difference and compensation for illegal termination of labor relations without signing a labor contract.
case analysis
In recent years, with the change of people's shopping style, the new express delivery industry has flourished, which has also spawned many new jobs. Compared with traditional enterprises, in order to avoid the high labor cost caused by labor relations, some enterprises in new formats will take some hidden employment methods to de-organize and de-organize, such as taking the relationship named contracting, contracting and outsourcing, which is actually the employment method of labor relations, or taking the way of third-party companies paying wages, paying social security and decoupling from actual employers, which damages the legitimate rights and interests that workers should enjoy according to law. In this case, Li, who was employed by a courier company, was arranged and managed by the courier company according to his working hours, and paid by the courier company, which fully met the requirements of affiliation in the determination of labor relations stipulated in the Notice on Establishing Labor Relations issued by the former Ministry of Labor and Social Security. Although the two sides signed an agreement to terminate the contract, the agreement was that the courier company maliciously misled Li to punish his legitimate rights and interests in order to cover up the existence of factual labor relations, thus exempting the enterprise from legal obligations and not supporting it according to law.
In this case, ultimately supporting the demands of workers according to law not only protects the legitimate rights and interests of workers, but also plays a good guiding role for employers to negotiate in good faith and protect the rights and interests of workers in the future, which is conducive to building a harmonious and stable labor relationship.
Case 10
title
If the employer stops production for more than one wage payment period due to the epidemic, it shall pay the living expenses to the workers.
Brief introduction of the case
Lin works as a floor attendant in a hotel, and the labor contract stipulates that the normal working time salary is 1720 yuan. From May, 20021year, due to the epidemic situation, catering services in some restaurants were suspended, and the business volume was greatly affected. Therefore, in order to control the labor cost and cooperate with the epidemic prevention and control work, the restaurant decided to give employees three months' unpaid leave. However, due to family constraints and high pressure of life, the restaurant stopped paying wages, which had a great impact on her. Therefore, the restaurant is required to pay the basic living expenses, while the restaurant argues that this move is also a last resort and is a force majeure event, so it will not be issued. Lin's living expenses. To this end, Lin filed an application for labor arbitration, requiring a restaurant to pay the basic living expenses every month.
Arbitration result
A restaurant works according to the first month's work.