Labor Dispute At Year-End: Termination Of Contract Renewal Or Termination?

After the entry into force of the labor contract law, there is a dispute over whether the employer has the right to terminate unilaterally after the expiration of the two fixed-term contract between the employer and the employee in judicial practice.

In this regard, the seminar on the law application of labor dispute cases (two) has been standardized, that is, after the expiration of the second fixed term contract, the laborer has the right to choose an unfixed term contract or terminate the labor contract, and the employer has no right to choose to continue to enter into a fixed term labor contract or terminate the labor contract.

Although the case took place before the release of the minutes (two), it was consistent with the provisions.

By the end of the year, the labor dispute has also reached a high incidence.

At this time, employees leaving, renewing contracts and receiving year-end awards are all likely to be the trigger for labor disputes.

In the face of these hidden dangers, how can we standardize the employment and make good prevention of labor disputes for employers?

To avoid infringement of illegal employment?

In order to maintain the stability of labor relations, the labor contract law puts forward strict requirements for employing units to abide by the legal basis and abide by the legal procedures in the renewal of labor contracts, especially the signing of non fixed term labor contracts.

When the employee labor contract is about to expire, no matter whether the two parties renew the contract, if there are disputes on certain matters, it is easy to become a hidden danger of labor disputes.

As a result, Hao Yunfeng, director of Donghe law firm, provides readers with comments on several typical cases related to renewal of labor contracts, combined with the view of adjudication in the trial.

Hao Yunfeng, director of Donghe law firm, Deputy Secretary General of the Beijing City Bar Association Labor and social security law, Specialized Committee, has the book "selected cases of actual labor employment".

Zhang entered a Beijing equipment company in 8 1998 and signed labor contracts.

In January 2006, the two sides expired.

In February 2006, Zhang joined the company again. Since then, the two sides have signed a contract for a period of six months, and the last one is February 2008.

In December 2007, the company reopened with Zhang.

The labor contract from February 2006 to June 2010.

In July 1, 2010, the company signed a labor contract with Zhang from July 1, 2010 to June 30, 2013.

In May 30, 2013, the company sent a written notice to terminate the labor contract without consulting Zhang's wishes, but Zhang refused to sign it, and thereafter the company did not arrange Zhang to work.

The average salary of Zhang's 12 months before departure was 6000 yuan, so the company paid 33 thousand yuan for the termination of the contract.

Since then, Zhang has applied for arbitration in the labor and personnel dispute arbitration committee of the Beijing economic and Technological Development Zone, and has asked the company to pay 168 thousand yuan for the violation of the labor contract compensation.

The Arbitration Commission dismissed all requests from Zhang.

The court held that after the entry of Zhang, both sides renewed the contract several times.

Some equipment company has renewed the contract signed with Zhang until February 2008, and in December 2007 signed a labor contract with a deadline of February 2006 to June 2010, and the company could not make a reasonable explanation.

The court held that the company accepted Zhang's refusal to sign a notice of termination of the labor contract, and the company did not seek Zhang's advice until the notice was not renewed. No evidence was submitted to prove that Zhang did not meet the conditions for renewing the labor contract.

The court held that Zhang had the right to ask the company to sign an unfixed term labor contract, and the company's termination of the contract was illegal.

The 33 thousand yuan economic compensation has been deducted, and the court ordered the company to pay 57 thousand yuan for the employee's illegal release.

[comment] in this case, the employer signed a labor contract with the laborers on many occasions. After the expiration of the contract, the employee's direct termination of the labor contract was found to be unlawful without consulting the laborers.

In this case, it is meaningless for the employer to extend the term of the original labor contract so as to avoid increasing the number of labor contracts and avoid signing a non fixed term labor contract.

According to the minutes of the meeting (two), only when the change of the term of the labor contract is changed and the employer fails to make a reasonable explanation, the number of workers who enter into a fixed term labor contract and the number of years of work shall be calculated continuously.