Why Is It Claimed That Compensation Has Been Awarded For Restoring Labour Relations?

In March 1, 2005, Mr. Yang entered a technology limited company in Shanghai (hereinafter referred to as "technology company") and worked as an expert electronic engineer.

On 3 and 1 2009, the two sides signed an unfixed term labor contract with a basic salary adjusted to 30000 yuan / month.

In June 28, 2013, the technology company began to restructure its human resources and structure due to the decline in its economic efficiency, and decided to withdraw Mr. Yang's position as a senior R & D Engineer.

In July 2nd of the same year, the technology company gave an oral announcement to Mr. Yang on the cancellation of his job. Mr. Yang disagreed with the decision of the technology company that he should not revoke his post.

The two sides have repeatedly communicated on the issue of compensation for labor contracts, but failed to reach an agreement.

In August 28, 2013, Mr. Yang and the department manager had a dispute over the labor dispute. On the same day, the technology company sent Mr. Yang a notice of dissolution of the labor contract by mail. The notice stated: "because the R & D Engineer you are engaged in has been revoked, the company terminates the labor relationship with you according to the fortieth third provisions of the labor contract law, and the labor relations between the two parties end in August 31, 2013."

In August 31st, the technology company paid the economic compensation for Mr. Yang's dissolution of labor contract in accordance with the law.

In March 3, 2014, Mr. Yang returned to the technology company and asked to go to work. The company security guard blocked it out.

The police told Mr. Yang that he could give legal protection to the relevant departments, but it would not affect the normal working order of the company.

In March 12th, Mr. Yang applied for labor arbitration and advocated resumption of labor relations and demanded that technology companies pay their wages from September 1, 2013 to the resumption of labor relations.

After hearing the trial, the Arbitration Commission held that the evidence provided by the technology company is not enough to prove that the objective situation has changed significantly, the act of rescission of the labor contract is illegal, the ruling has restored the labor relations between the two sides, supported Mr. Yang's appeal, and the technology company refused to accept the ruling and filed a lawsuit.

Li Huaping, lawyer of Huacheng law firm in Shanghai: this case involves the issue of the burden of proof, the lifting procedure and the possibility of resumption of labor relations on the grounds of major changes in the objective situation of the employer, which has a certain universality, and has a strong reference for employing units to standardize the use of tools.

First, the employer must bear the burden of proof for the "major changes in the objective situation".

What is "a major change in the objective situation"?

With regard to the provisions of the "labor law of the People's Republic of China", "the objective situation that causes the labor contract to fail to perform" means other circumstances that force majeure or cause all or part of the labor contract to fail to perform.

It mainly includes: enterprise migration, asset pfer, enterprise restructuring, departmental merger and withdrawal, business direction or strategic adjustment of business strategy, and product structure adjustment.

It can be seen that the "objective situation" which has caused the labor contract to fail to perform is changed greatly, and the two sides can not reach an agreement on changing the content of the labor contract, which may lead to the unilaterally rescission of the labor contract by the employing unit.

According to the provisions of the Supreme People's Court on the interpretation of several issues concerning the application of law in labor dispute cases, the employing unit shall bear the burden of proof when deciding on the termination of the labor contract.

In this case, the technology company does not have enough evidence to prove that there is "a major change in the objective situation that leads to the failure of the labor contract to continue to perform". There is no evidence that the two sides have consulted on the changes in the contents of the labor contract, such as jobs and labor remuneration.

Two, if the employer illegally terminates the labor contract and the labor contract can not continue to perform, he must pay the compensation to the laborer.

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"Article forty-eighth provides that if the employer illegally terminates or terminates the labor contract, and if the worker requests to continue to perform the labor contract, the employing unit shall continue to perform. If the worker fails to continue to fulfil the labor contract or the labor contract can not continue to perform, the employer shall pay the compensation according to eighty-seventh.

Accordingly, if the employer illegally terminates or terminates the labor relationship, the worker may choose to resume the labor relationship or claim compensation; if the labor contract is no longer able to perform, the employer shall pay the compensation.

In this case, the court held that the labor contract was no longer able to perform and decided that the technology company should pay.

First, the labor force, as a special commodity, has personal and social attributes, and the laborers and employers are not only an economic exchange relationship, but also a relationship of trust and cooperation.

Once the foundation of trust and cooperative relationship is lost, labor relations will no longer be harmonious and objectively lose the need for continuous performance.

Because Mr. Yang and the department manager had already been in dispute, they quarrelled about the work problem until the police intervened. Now that both sides have been in court, it is difficult to discard their past grievances and continue to return to a good working atmosphere. For example, the mandatory requirement to continue to fulfill the labor contract will not only impede the development of Mr. Yang's career prospects, but may also lead to new labor disputes, which is not conducive to the establishment of harmonious labor relations.

Secondly, the technology company has removed the post of expert electronic engineer, and the company has also indicated that there is no plan to resume the job. Mr. Yang's job has certain professionalism, and the law can not force the employer to re-establish the post.

Because the original position actually does not exist, the labor contracts of both sides can not be fulfilled objectively, so there is no objective condition for continuing to fulfill the post.