How To Deal With Common Problems In Labor Dispute Cases?

1. Is it possible for labourers to establish labor relations with new employers?

The different answers to this question reflect the different understanding of whether the same worker can establish labor relations with more than two employers in the current labor law theory and practice circles, that is, whether there is a dual labor relationship.

According to the first provisions of the thirty-eighth articles and fourth items of the labor contract law and the opinions of the Ministry of labor and social security on the implementation of the regulations on work-related injury insurance, China's laws and regulations do not completely negate the existence of dual labor relations.

Therefore, in the current situation, if the original employer can not provide workers with jobs under certain special circumstances, the laborers should be allowed to establish labor relations with the new employing units in order to protect workers' rights and interests in identifying work-related injuries and enjoying industrial injury insurance benefits.

That is to say, in addition to the existence of dual labor relations under part-time employment, we should conditionally recognize the existence of dual labor relations.

These situations mainly include: 1. the suspension of salary and retention; 2., the withdrawal of the state-owned enterprises staff, laid-off or waiting for posts, and 3. of the employing units operating the production of long vacation personnel.

The disputes arising from the employment disputes between the above-mentioned laborers and the new employing units shall be handled according to the labor relations.

Two, the employing unit unlawfully dissolves the labor relations, the laborer simultaneously advocates that has not signed the labor contract double wages difference and the illegal labor relations compensation, when the double wage is supported, should the court still support the claim for canceling the labor contract compensation?

In view of the above problems, one view is that the court should not support the compensation after supporting double pay.

The reason is that double pay is already a punishment for employers, and no double punishment should be imposed on employers.

And according to the law, only the compensation for illegal labor contract is not stipulated, there is no compensation for illegal labor relations.

Another view is that it should be supported. The reason is that the above two responsibilities are aimed at different illegal facts. Repeated application does not conflict. Illegal compensation for labor contracts should include compensation for breaking the de facto labor relationship.

We agree with the second opinion: the reason is that although the result of the second cases handled will result in a larger economic burden on the employer, this is the explicit provision of the labor contract law, and the court shall strictly enforce the labor contract law in the specific cases.

If the result of this kind of treatment is not fair to the employer, it is also the cause of legislation. It should be solved by amending the law.

Three. When a worker enters a job after 2008, when the dispute arises, the double wage period advocated by the laborer exceeds 11 months. Does the court support it? That is to say, if the written labor contract has not been signed for more than a year, should the employer continue to pay twice the salary after one year?

There is a view that, according to the provisions of the eighty-second clause and the second paragraph of the labor contract law, if the employer fails to sign a written labor contract with the employee after one year, the employer should continue to pay double wages.

The author believes that the provisions of the eighty-second and second paragraphs of the labor contract law and the provisions of the sixth and seventh regulations on the implementation of the labor contract law shall only support 11 months for double pay, and shall be deemed as a non fixed term labor contract after one year.

Since the conclusion of a non fixed term labor contract has better protected the rights of workers, it is neither legal nor fair to allow employers to pay double wages.

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Four, how should the employer and the laborer deal with the breach of the contract for breaking the labor contract?

In view of the above situation, there is a view that civil activities should follow the principle of autonomy of the parties and should be dealt with in accordance with the liquidated damages stipulated by both parties.

Otherwise, we should follow the principle of maximizing the protection of workers' rights and interests. For liquidated damages and compensation, we should choose a high number of projects to support workers' requests.

We believe that the above views are reasonable.

According to the twenty-second, twenty-third, twenty-fifth provision of the labor contract law, in addition to the two cases under the law, the employer shall not agree with the laborer that other workers shall bear the form of liquidated damages.

Starting from the relative rights and obligations of the parties, the worker should generally claim compensation in accordance with the law when the employer breaks the labor contract illegally.

However, if the liquidated damages stipulated in the labor contract are obviously higher than the compensation, the worker can also claim liquidated damages.

Five, if the worker fails to submit his resignation thirty days before the probation period, how does the employer disagree with the employer?

We believe that the provisions of the labor contract law on the resignation of workers 30 days in advance are required to protect the employment rights and interests of employers.

In the aforesaid circumstances, when a worker proposes to resign and the employer does not agree, the worker shall continue to work after he has resigned, and when the time limit for the 30 day expires, the labor relations between the two parties shall be dissolved.

If the employer proves that the worker refuses to go to work, he shall conclude that the labor relations between the two parties shall be terminated when the laborer leaves the post.

If the worker fails to give up the notice 30 days in advance, if the employer fails to complete the work and other reasons, the employer shall have the right to require the laborer to bear the liability for compensation in accordance with the ninetieth provision of the labor contract law.

Six, during the probation period, can employers and workers in the "three phase" release their labor relations?

We believe that the thirty-ninth clause of the labor contract law stipulates that the employer can terminate the labor contract if the worker fails to meet the employment requirements during the probation period.

At the same time, the forty-second provision of the labor contract law stipulates that in the period of pregnancy, childbirth and lactation, the employer shall not terminate the labor contract in accordance with the provisions of the fortieth and forty-first articles of this law.

Based on the above provisions, we believe that if a female worker in the "three phase" is proved to be out of employment during the probation period, the employer can rescind the labor contract.

However, the employer finds that the female employee is in the "three phase" and that it does not conform to the employment conditions.