If The Service Period Is Not Full, Can The Worker Terminate The Labor Contract?

[case introduction]

In February 1, 2005, Miss Wang signed a one - year labor contract with C company in Shanghai.

In October 2005, C imported an analytical instrument from the United States for its business needs. The operation and data analysis of the instrument is a leading technology in the world and requires professional training in the United States.

C decided to send Miss Wang to the United States for training. After consultations, the two sides signed a training agreement. The agreement stipulated that the C company sent Miss Wang to the United States for technical training for 3 months, the service period was 2 years, and the penalty for breach of contract was 50 thousand yuan.

In January 2006, Miss Wang finished her training and returned to C company. In August 2006, Miss Wang submitted her resignation to C company. C thought Miss Wang's service period was not enough, so she did not agree with Miss Wang's resignation. In September 2006, Miss Wang took C company to the labor dispute arbitration Committee, and asked the C company to handle the procedures for disqualification.

[trial results]

In the course of arbitration, C company filed a counterclaim and asked Miss Wang to bear the liability for breach of contract, 50 thousand yuan.

After hearing, the arbitral award C company should handle the refund procedures for Miss Wang within the prescribed period. At the same time, Miss Wang should pay the C company default payment of 50 thousand yuan.

[lawyer analysis]

I. the right to rescind the laborers.

The thirty-first provision of China's labor law stipulates that workers should terminate their labor contracts in advance and notify the employing units in writing 30 days in advance.

The article gives the laborers the right to unilaterally terminate the labor contract.

According to the 102nd provision of China's labor law, if the worker fails to terminate the labor contract according to the thirty-first provision of the labor law and causes economic losses to the employer, he shall be liable for compensation.

The article clearly defines what legal responsibilities the laborers should undertake to break the labor contract illegally.

1, there is a time limit for service and the right of workers to rescind.

According to the fourteenth provision of the Shanghai labor contract Ordinance, the parties to a labor contract may make an appointment for the period of service provided by the employing units for employing, training or providing other special treatment.

According to the above provisions, if the service period is not enough, can the worker unilaterally terminate the labor contract?

The answer is yes, but because workers violate the terms of the service period, they should also bear corresponding liabilities for breach of contract.

If the parties to a labor contract have agreed on the term of service, the period of service stipulated is longer than the term of the labor contract. If the employer terminates the contract at the expiry of the labor contract, he shall not recourse the liability for compensation for the service period of the worker.

When the labor contract expires, the employing unit requests the worker to continue to fulfill the service period. The parties concerned shall renew the labor contract, and shall agree on the performance of the service period by the two parties.

If a worker violates the provisions of the service period, he shall bear the liability for breach of contract.

2. The right to rescind the laborers when there is an agreement on the expiration date.

According to the fifteenth provision of the Shanghai labor contract Ordinance, the parties to a labor contract may make an appointment in the labor contract or confidentiality agreement for the workers who have the duty of protecting the business secrets of the employing units, but the advance notice period shall not exceed six months.

During this period, the employer can take corresponding measures.

In accordance with the above provisions, whether workers can unilaterally terminate the labor contract during the period of separation.

The answer is also affirmative, but at the same time, due to the violation of the agreement between the two sides regarding the closure period, the workers should bear the corresponding liability for breach of contract.

Two. Agreement on liquidated damages

According to the seventeenth provision of the Shanghai labor contract regulations, the labor contract sets liquidated damages to the laborers' breach of contract, which is limited to two cases. One is the violation of the terms of the service period; the two is the violation of the stipulation of conservative business secrets.

At the same time, the amount of liquidated damages should be followed by fair and reasonable principle.

The amount, responsibility and payment of liquidated damages shall be stipulated by the parties in the labor contract in accordance with the principle of fairness and rationality.

If a worker violates the agreement, he shall bear the responsibility for breach of contract.

If the amount of liquidated damages stipulated by the two parties is higher than the actual loss caused by the employee's breach of contract, the worker shall bear the penalty for breach of contract according to the agreement between the two parties. The amount of the liquidated damages stipulated in the contract is lower than the actual loss. If the employer requests compensation, the worker shall compensate for the actual loss.

If the amount of liquidated damages prescribed is too high, the parties concerned may request an appropriate reduction.

In this case, C sent Miss Wang to foreign countries for technical training. In this case, C can arrange a service period with Miss Wang, and at the same time, it can set a penalty for breach of contract.

According to the actual training expenses, travel expenses and other factors, the two sides agreed that the service period is two years, and the penalty for breach of contract is 50 thousand yuan, which should be fair and reasonable.

Although Miss Wang proposed to resign under the condition of insufficient service period, she fulfilled the obligation to give written notice 30 days in advance. Therefore, C company should handle the procedures for disqualification.

At the same time, because Miss Wang is not satisfied with the service period, the dissolution of the labor contract is obviously a breach of the agreement between the two sides on the service period. According to the contract between the two sides, Miss Wang should bear a penalty of 50 thousand yuan.