Can Dismissal Of "Short Time" Units In Golden Week Be Dismissed?

Zhao Meijuan is a senior technician in a company.

On the eve of the National Day holiday, a unit hoped that she could use the holiday to repair machines and equipment, and promised a handsome reward.

Zhao Meijuan felt idle and idle, and agreed to come down.

And when Zhao Meijuan went to the repair shop as scheduled, the company leader who had heard the news called Zhao Meijuan, saying that he could not "work part-time" even during the vacation, and asked her to stop immediately.

But Zhao Meijuan thought he was in the law.

The internal activities have the right to govern by themselves, and the company has no right to interfere.

Unexpectedly, when Zhao Meijuan returned to work in the company after the holidays, he was really dismissed by the company.

Comment: Although Zhao Meijuan only used the National Day holiday outside, "

"But when there is still labor relationship with the company, this behavior is also part time job.

"

"The thirty-ninth clause, the fourth provision, establishes a labor relationship with other employers at the same time, has a serious impact on the completion of the work tasks of the unit, or the employer may rescind the labor contract if the employer proposes to refuse to correct it.

That is to say, the key to terminating the labor contract lies in the influence of part-time work on the employer and the attitude of the employer.

In this case, the company has made it clear that Zhao Meijuan must stop immediately, while Zhao Meijuan ignored it, so the company unilaterally lifted its labor contract.

Related links:

Yang is a staff member of a construction company.

In March 16, 2015, the intermediate people's court ruled that the construction company entered bankruptcy proceedings.

In May 20th, Yang directly sued to the hospital, requesting the construction company to pay labor remuneration and economic compensation totaling more than 28 yuan.

Should Yang's proposal be preceded by a labor dispute arbitration procedure?

The author believes that although Yang's claim is in the form of labor disputes, the employer can only exercise his claim for confirmation of creditor's rights because he has already entered the procedure of bankruptcy and debt repayment. He does not have to go through the preposition procedure of labor dispute arbitration.

The reasons are as follows.

In the current legal framework, although the arbitration preposition is a general procedure for handling labor disputes, in order to protect the interests of creditors, the enterprise bankruptcy law has made clear provisions on the liquidation of various types of claims.

At this time, the laborer makes a request for the payment of the labor creditor's rights, and the ruling organ can not decide that the bankrupt enterprise will pay the related creditor's rights within a specified time limit, but confirms that the laborer has the corresponding labor creditor's right for the bankrupt enterprise, and then pays the proportion according to the law in the bankruptcy liquidation procedure according to law.

According to the provisions of the Supreme People's Court on the causes of civil cases, such cases can be directly identified as "confirmation of bankruptcy bankruptcy claims".

Therefore, this kind of dispute has been treated by ordinary civil disputes after the employer has entered the bankruptcy procedure.

In addition, it can be seen from the existing law that such disputes are different from the general procedures for dealing with labor disputes.

The forty-eighth section and second paragraph of the enterprise bankruptcy law stipulates that the wages and medical expenses, disability allowance and pensions expenses owed by the debtors shall be included in the basic old-age insurance and basic medical insurance expenses that should be included in the employee's personal accounts, and the compensation that should be paid to the employees in accordance with the laws and administrative regulations.

If a worker disagrees with the list, he may request the manager to make corrections. If the manager fails to make corrections, the employee may bring a suit in the people's court.

This law gives the laborers the right to direct prosecution without labor disputes.

Compared with the labor law and the labor dispute mediation and arbitration law, the enterprise bankruptcy law is a special law in dealing with the labor claims of bankrupt enterprises. According to the principle of special law superior to the general law, the provisions of the enterprise bankruptcy law shall apply, and the workers can directly sue the people's court for their labor claims, without having to go through the preposition procedure of labor dispute arbitration.

At the same time, the twenty-first provision of the enterprise bankruptcy law stipulates that after the people's court accepts the bankruptcy petition, the civil litigation of the debtor can only be brought to the people's court that accepts the bankruptcy application.

The "civil litigation relating to debtors" of course includes labor disputes, so the intermediate people's court has jurisdiction over the case.