How To Terminate The Labor Contract During The Service Period And How To Pay The Penalty For Breach Of Contract

Lee was recruited in June 14, 2007 to be a technical engineer in Guangzhou. In October 2008, the company considered Li to be able to build, so he arranged to train for three months of technical knowledge, a total of 120 thousand yuan for the company's training fee. After the completion of Li's training, the company signed a technical service agreement with him, which agreed that Lee was serving the company from March 1, 2009 to February 28, 2012. In the next 3 years, Li should do his best to provide services to the company, and he may not apply for leave. Otherwise, he should pay the company 150 thousand yuan for breach of contract. In April 13, 2010, Lee unilaterally terminated the labor contract on the grounds that the company paid too low wages. The company filed an arbitration with the local labor dispute arbitration committee on the ground that it violated the technical service agreement's term of service, and asked Li to pay a penalty fee of 150 thousand yuan. Does the company's argument make sense?

Lawyer's statement

Zheng Xianchun, lawyer of Guangdong Huayu law firm, believes that the case is controversial. focus It is the labor stipulated in the service period. contract Should the worker unilaterally dissolve the labor contract to pay the penalty for breach of contract, how should he pay the penalty for breach of contract?

According to the original Ministry of Labor The office of the general assembly, "reply to the question on the basis of handling labor contracts during probationary period" (labor office issued [1995]264) third stipulates: "on the issue of training expenses related to the termination of labor contracts, the employer invested (refers to the situation of payment of currency vouchers) to carry out all kinds of technical training for workers, and the workers proposed to terminate labor relations with the unit, if the probationary period is, the employer shall not require the laborers to pay the training fee. If the probation is expired, the employer may require the laborer to pay the training fee during the term of the contract. The specific payment method is: the agreed period of service shall be divided into the amount of contribution according to the service period, and the payment shall be reduced by the service period that the employee has fulfilled; if the service period is not specified, the contract amount shall be reduced according to the amount of the labor contract period, and the contract period of the employee has been reduced; if the contract period is not stipulated, the payment amount shall be reduced according to the 5 year service period and the service period of the employee has been reduced. If the contract expires and the employee requests to terminate the contract, the employer shall not ask the laborer to pay the training fee. " The "reply" stipulates that after the payment of the training fee related to the termination of the labor contract is made by the employer, if the worker proposes to terminate the labor relationship with the employer, he shall return the training fee to the employing unit in accordance with the equal amount of the service period, but has not provided for the stipulation and payment of the liquidated damages.

According to the twenty-second clause and second paragraph of the labor contract law, "a worker who violates the stipulations of the service period shall pay liquidated damages to the employer in accordance with the contract." The amount of penalty shall not exceed the training fee provided by the employer. The liquidated damages paid by the employer to the laborer shall not exceed the training expenses that should be apportioned in the part of the service period that has not yet been fulfilled. " The law clearly stipulates that in the performance of the labor contract that stipulates the service period, the worker should pay the penalty for breach of contract according to the agreement between the two parties. The standard of payment for breach of contract damages shall not exceed the training expenses that should be apportioned in the part of the service period which has not yet been fulfilled, and the total amount of the penalty shall not exceed the total amount of the training fee.

In this case, Lee unilaterally cancelling the labor contract, he should pay a penalty to a technology limited company in Guangzhou. The standard of liquidated damages is the 120 thousand yuan training fee paid by the company in proportion to the service period of Li. Therefore, Lee only needs to pay more than 70 thousand of the default payment to the company. It is unreasonable for a technology company in Guangzhou to advocate.