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After The "Labor Contract Law" Era, Teach You How To Fight A New Type Of Labor Lawsuit.

2014/2/11 15:12:00 27

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The Labor Contract Law A New Type Of Labor Lawsuit

< a > href= > http://www.91se91.com/news/index_q.asp > laborers < /a > circulation litigation increased /p >

malicious lawsuits seek improper benefits

new case .

1 .

February 2013, Wu entered Luotian company, the two sides signed a 5 year labor contract.

In July 9th, when Wu reported the work, he had a quarrel with the company manager Wang because of his disagreement.

The next day, Wu came to the company to work normally, but the company presented the notice of resignation to him. He dismissed Wu for several days in a row for several days in a row and violated the company's rules and regulations seriously, and stated that the two sides had terminated their labor relations in July 1, 2013.

because the company refused any compensation, at the end of July, Wu sued for the company to rescind the decision to terminate the illegal labor contract and continue to fulfill the labor contract.

In September, Wu had entered the work of Jia Yang company. The company began to pay social insurance for Wu on the same month. However, during the lawsuit, Wu never made a statement to the court about this fact.

the court held that Luotian company did not submit sufficient evidence to prove that Wu had the fact of continuous absenteeism. There was no factual basis for relieving bilateral labor relations on the grounds of absenteeism. It was illegal to terminate labor relations, and Wu had the right to continue to fulfill the labor contract.

But since September 2013, Jia Yang has begun to pay social insurance for Wu. In view of the fact that enterprises usually pay personal social insurance for individuals, there is labor relationship between the two sides, and Wu failed to make a reasonable explanation. Therefore, the court held that Wu had been hired by his employer in September 2013 and decided that the labor contract between Wu and Luotian company would be fulfilled until August 31, 2013.

judge's statement .

2 .

Zhao, a migrant worker in Beijing, joined the catering company in September 8, 2009, engaged in garnish work. The monthly wage standard was 2800 yuan, and the catering company did not pay social insurance for them.

In October 31, 2011, Zhao resigned to the company at home because he had something to do with his family and asked for a salary of 2800 yuan in the current month.

the company agreed to leave, but asked Zhao to sign a labor agreement, otherwise it would not pay October wages.

The company's drafted agreement contains: "the two sides have terminated their labor relations by consultation in October 31, 2011, and Party A pays Party B 2800 yuan in October 2011, and all other expenses have been practically settled according to the requirements of the contract. There is no dispute between the two sides."

Reluctantly, Zhao signed the agreement.

After P, Zhao learned that according to the relevant laws and regulations, he sued the company for payment of unpaid annual leave and unpaid pension and unemployment insurance compensation.

the court held that the agreement on dissolution of labor relations contained "all other expenses have been practically settled according to the requirements of the contract, and there is no dispute between the two sides". However, it did not reflect that the company had consulted with Zhao on the annual leave pay and social insurance compensation, and paid the related compensation in real time.

In addition, the employer has a dominant position in management, and the text of the labor contract agreement is released unilaterally and requires Zhao to sign the confirmation. Zhao is a primary school education and lacks legal awareness.

Because the catering company failed to confirm that it had paid special attention to Zhao's notice on the above terms, the Court adopted Zhao's assertion that the above provisions were obviously unfair and was revoked.

new case .

the employer's right to infringe on the laborer's rights is /strong > /p >

judge's statement .

part of the dishonest employers make use of their own management advantages to settle their wages and leave certificates, or use laborers' low educational level and weak sense of law. They require workers to sign a severance agreement containing all clauses of "all disputes resolved once and for all," and "all charges have been cleared up", which violates the real meaning of workers and infringes the legitimate rights and interests of workers.

Judge Hu Gaochong held that in practice, the above agreement or related provisions would be invalid by the arbitral body and the court if the utility unit was found to have fraud, coercion or risk taking behavior when it asked the employee to sign the agreement.

Although there is no such case, there is a major misunderstanding of the content and nature of the agreement, or the above agreement seriously excludes the unfairness of the rights of the workers. The arbitration organization or the court may also cancel the agreement or relevant provisions at the request of the parties.

judge Hu reminded the laborers that in addition to polishing the eyes of the agreement, they should avoid signing the documents such as labor contracts or payroll records which are inconsistent with the actual situation of Zai Ming. Otherwise, they may bring unnecessary trouble to themselves.

Judge Hu Gao Chong, a court of labor dispute in Haidian, said that according to the provisions of < < a href= > http://www.91se91.com/news/index_q.asp > > < < /a > > forty-eighth, under the circumstances of the employer's illegal termination of labor relations, laborers can maintain their rights and interests in two ways: first, recognition of the labor relationship between the two parties has been lifted and payment is demanded; and two, it is advocated that the labor relations between the two parties continue to exist.

in judicial practice, it is required that the number of labourers who continue to maintain their labor relations will not be in the minority.

A laborer who stops working due to the illegal rescission of the employing unit shall have the right to require the employer to pay the remuneration during the period of work stoppage.

The above laws provide adequate protection for the interests of workers, but also lead to a large number of "circular litigation".

There is a laborer asking the employer for a salary reward every half a year, which increases the burden of litigation. Some even advocate the existence of labor relations with the original employer after the entry of the new employer, so as to seek labor remuneration and seek improper benefits.

Such conduct is not honest and fair, and can not be supported by the court.

3 .

Li Mou entered a school in 3 months in 2005, responsible for afforestation and conservation.

By 2011, every year, from January to February, Li did not need to go to work because of the season, and the school did not send wages to him.

Every year in March, Li received the notice from the school and went to work until December 31st of that year.

The two sides signed a 10 month labor contract for the two time in March 2010 and March 2011.

At the end of 2011, the contract expired, and the consultation on compensation was unsuccessful. Li sued the school for payment of the economic compensation for the termination of the labor contract.

in the trial, Li advocated that the labor relationship between the school and the school continued from 2005 to 2011.

The school advocated that the two sides should establish a labor relationship for 10 months starting from March 1st.

the court held that in the winter of February, during the winter vacation in Beijing, schools did not arrange for Lee to work in January or February.

More than 7 years, Lee has been implementing the work system of 10 months a year, has formed the usual practice.

During the rest of January and February, Li and other schools were informed of their posts at school. The school also informed them of their posts every year at a fixed time. Therefore, both sides held a positive, expectant and definite attitude towards the existence of labor relations.

the labor relations between the two sides have been interrupted several times in the form, but they have been in a state of continuous existence in essence. Therefore, the working life of Li should be calculated continuously.

However, because Lee and the school department terminate labor relations due to the expiration of the labor contract, the labor contract economic compensation has become the statutory payment obligation of employers since the promulgation and implementation of the labor contract law in January 1, 2008. Therefore, the court ordered the school to pay the economic compensation for the termination of the labor contract on the basis of the actual working life of Li after January 2008.

new case .

the duty of workers to return to zero is evading the obligation of economic compensation /p >

judge's statement .

borrow office to facilitate "workplace porcelain" /p >

laborers cheat two times salary compensation

new case .

4 .

Liu became a human resource manager in July 1, 2012 when he joined Digital Corporation. The two sides signed a one-year labor contract on the same day.

After the expiration, both sides agreed to terminate the contract, and the company also paid an economic compensation for Liu's termination of the labor contract.

But shortly after Liu left office, he sued the company for paying two times the wage difference without signing a written labor contract.

< a > href= > http://www.91se91.com/news/index_q.asp > > court < /a > after hearing that according to the list of documents submitted by the company to the court, Liu Mouceng received the text of the labor contract signed by the company and herself.

Although he denied signing the contract, he failed to give a reasonable explanation of the signature in the list.

As requested by the court, Liu also failed to submit the labour contract he retained, so as to overturn the contents of the copy of the labor contract provided by the company, and should bear the adverse legal consequences.

At the same time, taking into account Liu's duties, including keeping the labor contract retained by the company, it is impossible to exclude the possibility that the original contract will be taken away.

In summary, the court accepted the copy of the labor contract submitted by the company, confirmed that the two sides signed a one-year labor contract, and the ruling rejected Liu's entire appeal.

judge's statement .

judge Hu Gaochong said that the law stipulates that the employer should pay two times the form of wages, which strengthens the legal liability of the employing unit and the laborer to conclude a written labor contract. That is, when the employer fails to fulfill the statutory obligations of signing a written labor contract with the laborer, it should pay two times the monthly salary to the laborer within a certain period.

However, driven by interests, some dishonest workers try to obtain two times wage difference through litigation by delaying labor contracts and stealing labor contract texts.

Such acts of dishonesty disrupt the normal employment order, increase the unstable factors of employment, and deserve to be condemned.

Employers should also take this as a warning, improve the management system of labor contracts, and avoid similar disputes.

according to judge Hu Gaochong, the economic compensation for termination (termination) of labor contracts shall be paid to laborers according to the number of years worked by the workers in their units since January 1, 2008, and the standard of one month's wages paid every year.

When the laborer or the employer terminates or terminates the labor contract, the calculation of compensation or compensation relates to the determination of the two criteria of wage standard and working life.

judicial practice is not uncommon for disputes over the number of years of work.

Some group companies allocate personnel among different subordinate companies for business planning or staffing needs; some affiliated enterprises, "the same class staff, and another brand", and there is a specific case in this case, through the form of intermittent employment, it is intended to avoid signing non fixed term labor contracts, while reducing the working life of workers.

the court will, on the basis of a comprehensive investigation of the facts of the case, make a determination of the working life of the workers in the unit, and fully protect the legitimate rights and interests of the laborers.