Avoid Entering The Labor Contract "Trap"

< p > unit looks very cool: early termination, compensation 4 months salary < /p >

< p > 55 year old Luo Jia Min was originally a salesman of a chemical company in Jiangning.

In September 2004, a company was bought by a company. Luo Jia Min was accepted by other companies and signed a new labor contract.

According to the contract, Luo Jia Min's position is sales manager, and the monthly fixed salary is 9000 yuan after tax.

B company proposed in the contract, if the company puts forward a cancellation before the expiration of the contract, the contract is rescission 1 months in advance, giving 1 months' salary as compensation.

"At that time, I didn't know much about labor law, and I felt that the unit was very effective and did not hesitate to sign it."

Luo Jia Min smiled bitterly.

In April 2009, 4 months before the expiration of the contract, B company really dismissed Luo Jiamin in advance, on the ground that "the objective situation of signing the contract has changed".

< a href= "http://www.91se91.com/news/index_cj.asp > > personnel department < /a > moves very fast, the front foot sends out the dismissal book, the hind foot will inform the compensation, according to the contract agreement, compensates 4 months wages.

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< p > control law is not worthwhile: according to service age, it can compensate 12 months' salary < /p >.

< p > > Luo Jia Min was dumbfounded. He was dismissed for over 50 years. The difficulty of re employment is self-evident. How can he make up for the loss of more than 30 thousand yuan compensation? He found a lawyer and asked if he could sue the unit. After hearing the case, the lawyer told him: "the terms of the contract are too big for you. You have lost a lot!" originally, Luo Jia Min worked in a company since 1994. In 2004, a company was bought and sold by company B, and Luo Jiamin was also received by company B. according to the relevant laws, his working life in the company should be calculated from 1994.

"The law stipulates that when you have worked for 1 years and calculate the compensation for 1 months' wages, you can see how much you have lost."

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Less than P, Luo Jia Min pinched his fingers.

He immediately hired a lawyer to apply for labor arbitration.

Arbitration shall be paid according to the actual working years, and the unit shall be paid 15 months' wages as compensation.

The unit is not satisfied, and prosecuted to the Jiangning district court.

The unit believes that Luo Jia Min is an adult and voluntarily signs a contract and should compensate for it according to the compensation standard stipulated in the contract.

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< p > Court Justice: the term "exemption from legal obligations of the unit" in the contract is invalid. < /p >

< p > Jiangning District Court held that the a href= "http://www.91se91.com/news/index_x.asp" > labor contract < /a > was signed voluntarily between the two sides, but the terms of the "compensation standard" were inconsistent with the contents of the labor contract law. It was obviously "exempt from the legal liability of the employer and the right to exclude the laborers". According to the legislative intent of the labor contract law, the clause should be invalid.

Therefore, the economic compensation for Luo Jia Min should be calculated according to the statutory standard.

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< p > economic compensation is determined by the length of service. Generally it is 1 months' wages for every 1 years of work. However, the law also stipulates that the high salary class (average wage is 3 times higher than the average wage of local workers). No matter how many years worked, it can only calculate the economic compensation in 12 years, and the base monthly salary can only be calculated by three times the average monthly wage of the local workers.

When the Jiangning district court heard the case, the average monthly wage of Nanjing workers was only 2658 yuan, and Luo Jia Min a href= "http://www.91se91.com/news/index_c.asp" > after tax wage < /a > 9000 yuan, which was definitely a high salary.

Therefore, although he has worked for a period of 15 years, he can only take the compensation equivalent to 12 months' salary in accordance with 12 years' calculation, and the salary can only be calculated at the rate of 3 yuan of 2658 yuan.

Finally, the court decided that B company should pay more than 9.5 yuan of economic compensation.

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The company refused to accept P's appeal and was appealed to the Nanjing intermediate people's court.

At present, the case has come into force and has been implemented.

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< p > < strong > judge comment < /strong > < /p >

< p > with "prior agreement" to exempt from responsibility, no way! < /p >

< p > Chen Chuansheng, judge of the five court of the Nanjing intermediate people's Court: the labor contract is different from the ordinary civil contract. The ordinary civil contract is adjusted by the contract law. The contract law is a private law. Generally, there is no interference in the agreement voluntarily concluded by the contract owners. However, the labor contract law has the characteristics of public law, and its legislative intention is to balance the interests of labor and capital, especially the protection of the rights and interests of workers.

If it is not clear about some matters in the labor relations, it will be agreed that the contract between the employers and the employees will not be conducive to protecting the interests of the workers.

Because workers are often in a weak position when they apply for jobs and sign contracts.

Therefore, the labor contract law clearly stipulates the numerous items and standards of economic compensation and so on, so as to restrict the employing units to make a contract which is not conducive to the laborers by using the strong position.

The same reason, such as "the two sides agreed not to sign a contract without insurance, the consequences are labourers' conceit", "industrial injury, responsibility conceit" and other preempted clauses, are contrary to the spirit of legislation, and are invalid clauses.

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