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How To Protect Labor Rights In Individual Layoffs

2008/12/2 11:12:00 41895

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In reality, more enterprises have adopted the practice of "clearing the road and clearing the way", that is, layoffs one by one, so as to avoid the complicated and cumbersome scale of layoffs.

The premise of scale reduction is to "reduce more than 20 people or cut down less than 20 people, but account for more than 10% of the total number of employees".

Then, if a company cuts off "less than twenty people" and the total number of employees is "less than ten percent", can it not be necessary to comply with the above procedures?

In this way, is it possible for employers to shirk their statutory obligations by "layoff" in batches?

The answer is obviously negative. If an enterprise wants to lay off workers in batches, the employer must still proceed in accordance with the legal framework.

Typical case in 2007, Xiaoli applied to an advertising company as a manager and signed a two-year labor contract with the company. In February 2008, the company issued a notice of termination of labor contract to Xiaoli, saying that because of the company's business structure adjustment, it was intended to merge with another company and no longer set up an advertising company manager position. Because Xiaoli's post was no longer established, the company would terminate the labor contract from February 2008 and pay the compensation for Xiaoli's annual leave and 2 months' salary.

Xiaoli immediately referred to labor dispute arbitration, requiring the company to compensate the economic loss according to the contract, that is, the loss of all wages during the validity period of the contract.

Xiaoli said: the two parties have agreed in the contract that any party who violates the contract shall compensate the other party for all the economic losses according to his contractual obligations.

Without any fault, the company unilaterally terminates the labor contract on the basis of structural adjustment and infringes upon its legal rights, and shall compensate the loss of all wages in the contract period according to the contract.

The company argued that Xiaoli's post was no longer set up, and the impact of the international environment caused the company to run poorly.

The termination of the labor relationship is in line with the objective circumstances agreed in the labor contract. The employer can rescind the contract ahead of time, and Xiaoli also has fault in the execution of the contract, so its early rescission is not a breach of contract.

The court of first instance and the second instance considered that: during the trial period, the company had made it clear that the labor contract was not relieved by violation of discipline, and that the labor relationship with Xiaoli was disqualified on the grounds of the adjustment of the business structure.

In view of the trial period, the two sides agreed to continue to fulfill the labor contract.

Now Xiaoli agreed to terminate the labor contract and agree on the economic compensation.

Final decision: the company shall pay the economic compensation for the dissolution of the labor contract and the loss of Xiaoli's wages.

Analysis commented that the company mentioned "great changes in the objective situation and the employer can terminate the contract ahead of time". According to the fortieth provision of the labor contract law, it is one of the circumstances that can relieve the labor contract. However, since the law does not make any further provisions or explanations on what is "significant changes in the customer view situation", practice has often become the reason for many enterprises to terminate the labor relationship with employees at will.

In fact, there is no requirement for the termination of labor contracts because of objective conditions, and employers are not allowed to unilaterally terminate labor relations as an excuse.

The labor law stipulates that the following conditions must be met:

First of all, due to the change of objective circumstances, the change of objective situation must be very important, resulting in the failure of the original contract to be fulfilled, and the relevant evidence can be provided.

The content of "objective change" has puzzled many people, generally speaking, as objective facts of the foundation or environment of a labor contract.

For example, because the government reinventing the urban environment requires a factory to move to a suburb, causing the worker not to continue to fulfill the labor contract, this clause can be applied.

Note that the objective situation of change must be based on the signing of the labor contract, and the circumstances after the change must be sufficient to make the original contract impossible to perform.

Nowadays, the "financial tsunami" really belongs to "a major change in the objective situation", but it does not mean that the emergence of such a situation will inevitably lead to "the original labor contract can not be fulfilled".

If the "financial tsunami" does not affect the specific posts of workers, enterprises must not be able to lay off employees individually. As a result, they will not be able to continue to carry out the original labor contracts, but enterprises will not be able to lay off workers individually.

Secondly, the contract should be negotiated first, and the contract can be terminated if the contract is not changed.

After the occurrence of the situation affecting the performance of the labor contract, the employer should first negotiate with the laborer to change the labor contract, rather than directly dissolve the labor relationship.

The company in this case just ignored this point and unilaterally terminated the labor contract without consulting with the staff. This kind of rescission is invalid.

At the same time, the negotiation of labor contracts is not the result of employing employees to "wear small shoes" at will, and deliberately result in "no change in consultation".

According to the requirements of the labor law, the principle of legality, fairness, equality and voluntariness, consensus and honesty should be followed.

Thirdly, the employer should notify the trade union in advance and notify the worker himself in writing thirty days in advance, or pay the employee one month's wages before he can terminate the labor contract.

Here, the twentieth provision of the regulations on the implementation of the labor contract law stipulates that employers should pay extra wages for the workers' monthly wages in accordance with the fortieth provision of the labor contract law.

Finally, the economic compensation should be paid according to law.

The economic compensation is equal to the monthly average wage of twelve months before the termination and termination of labor contract, multiplied by the working life of workers.

The key is that "wages" should contain those elements.

In practice, it is calculated according to the "basic wage", also calculated according to the "post wage", and is packaged in thirty percent off according to all income.

Faced with this confusion, the recent regulations on the implementation of the labor contract law provide such an explanation:

First, wages are calculated according to the workers' wages, including time wages or piecework wages, and monetary income such as bonuses, allowances and allowances.

The key to this expression is "monetary income".

In other words, as long as we spend money, we can calculate wages.

Secondly, the average wage is lower than the local minimum wage standard, and is calculated according to the local minimum wage standard.

Thirdly, if the workers are less than 12 months' work, the average wage should be calculated according to the actual working months.

In addition, the calculation of the working years and the regulations on the implementation of the labor contract law clearly stipulates that the "working hours" of the original employer shall be calculated as the working year limit of the new employer for the reason that the employer has not been assigned to the new employer.

If the original employer has paid the economic compensation to the laborers, the new employer will no longer calculate the working life of the laborers in the original employing units when they calculate and pay the economic compensation period in accordance with the law.

It can be seen that if the employing units quietly carry out individual layoffs, they are still subject to many restrictions. They can not shout the "financial tsunami", so they can leave unwanted employees out at any time.

Remember, individual layoffs still need to be forgotten.

Editor: vivi