On The Grounds Of Bad Business, The Layoffs Were Decided To Pay High Compensation To Workers.

[case replay] Ms Xu is an official member of an international travel company.

She signed a labor contract with the tourism company in 2010. The contract stipulates that the salary is 3000 yuan, and the royalty shall be implemented in accordance with the company's regulations.

After entering the office for a period of time, Ms Xu has mastered the business skills, and the post has been pformed from the most basic tour guide to the department head of the Russian business department.

With her fluent Russian and business brain, she not only consolidated Russia's business, but also extended the market of tourist companies to Eastern Europe, becoming the elite backbone of nearly two thousand employees in the company.

In June 2014, due to the sluggish tourism market, tourism companies in Eastern Europe and Northern Europe failed to carry out their business as usual.

In November 2014, the decision of the tour company decided not only to dissolve the whole business department, but also to terminate the labor contract with more than 10 employees headed by Ms. Xu.

The personnel department of the tourist company found Xu Nv.

In consultation with the employers on the issue of compensation for labor contracts, Ms Xu insisted on claiming economic compensation, and the company paid at most a month's economic compensation.

The two sides also had disputes over the calculation base of the compensation.

Finally, Ms. Xu took the travel company to the labor arbitration committee.

[result] the Labor Arbitration Commission held a trial in this case. During the trial, the travel company claimed that Ms. Xu's basic salary for 3000 yuan / month was pferred from the company's direct account to Ms. Xu's account, and the company's action to terminate the labor contract was economic redundancy, which should pay the economic compensation instead of the compensation.

At the same time, the relevant credentials of the pfer account produced by the travel company are taken as evidence.

Ms. Xu believes that the monthly irresponsible base salary is indeed directly imported into the company's account, but Ms Xu has two wage cards, and the other card is a monthly commission deducting from the company's division, which should be part of the relevant compensation base for the termination of the labor contract.

Finally, the labor arbitration commission supported Ms. Xu's arbitration application and decided that the tour company paid 100 thousand yuan to Ms. Xu.

Lawyer Zhang Guochen, lawyer of the water hammer law firm believes that the case involves two legal issues. First, what kind of compensation should the tour company pay to Ms. Xu; and two, how the amount of compensation should be calculated.

First of all, we should clarify the provisions stipulated in the labor contract law.

The difference between gold and economic compensation, as well as the legal basis for the travel company to pay economic compensation to Ms. Xu in this case.

According to the relevant provisions of the labor contract law, the employer should pay economic compensation to the laborers in the following cases: (1) the labor contract is relieved by the laborers according to law; (2) the employer puts forward the labor contract and unanimously dissolves the labor contract with the labourer; (3) the employer is not dismissal of the laborer; (4) the employer is laid off according to law; (5) the labor contract is terminated due to the expiration of the labor contract, except for the labor contract renewal contract, the laborer does not agree to renew the contract); (6) the termination of the labor contract in the special case; (7) the other circumstances as prescribed by laws and administrative regulations.

In this case, we see that the "economic layoffs" advocated by employers are illegal.

This is because, according to the forty-first provision of the labor contract law, the economic layoffs should be laid off by more than 20 people, or less than 20 employees, but accounting for more than 10% of the total number of employees.

Regardless of the procedural problems of the layoffs of tourism companies, the company is a large enterprise with nearly two thousand employees from the angle of the number of layoffs. The number of "economic layoffs" is only ten odd, which is totally out of line with the requirements for economic layoffs stipulated in the labor contract law of China.

Therefore, the reason why the travel company dismissal Ms Xu is not in line with the requirements of the labor contract law for payment of the economic compensation, should pay the economic compensation for the illegal termination of the labor contract to Ms. Xu.

Second, the nature of the compensation paid by the employer has been determined. How should we determine the amount of the compensation? According to the eighty-seventh clause of the labor contract law of the PRC, "the employer's breach or termination of the labor contract in violation of this Law shall be two times the standard of economic compensation stipulated in the forty-seventh provision of this law."

"Payment for damages"; the forty-seventh provision states: "economic compensation shall be paid to laborers according to the number of years worked by the laborers in their units and the wages paid for one month per year.

For more than six months with less than one year, the financial compensation for half a month's wages will be paid to the laborers for a period of one year or less than six months.

The monthly wage mentioned in this article refers to the average wage of a worker within twelve months before the termination or termination of the labor contract.

Because it is illegal to terminate the case, the employer should pay two times the compensation to the employee, because Ms. Xu should pay 5 months' wages in the 5 years' work of the enterprise, so the compensation paid to the employees should be 10 months' wages.

In addition, is the monthly salary base calculated according to the "no liability base salary of 3000 yuan"? According to the original labor department's announcement in 1995.

The third provision of Interim Provisions: "wage in this Regulation refers to the stipulation of employers' wages paid to laborers in various forms in accordance with the provisions of the labor contract". It is not difficult to see that wages are not only limited to the monetary funds directly paid to the laborers by the employing units, but also include various forms of wage remuneration.

Obviously, in this case, the company's contribution to Ms. Xu should be part of Ms Xu's salary.

Therefore, the ruling of the labor arbitration commission supporting Ms. Xu's arbitration request is in conformity with the law.