Employees Are Dismissed: There Is A Difference Between The Calculation Method And The Base Of Economic Compensation In Different Cases.

When an employer arbitrarily terminates or terminates labor relations, it must pay laborers certain financial compensation, but not all workers can get financial compensation if they terminate or terminate labor relations.

And because of the different circumstances, there are differences in the calculation method and the base number of economic compensation.

Xiao Zhang signed a one - year labor contract with a technology company in January 2011.

One month before the expiration of the labor contract, the company issued a notice to the Xiao Zhang that the labor contract was no longer renewed, and delivered the notice of termination to Xiao Zhang on the termination date of the contract.

When Xiao Zhang and his company failed to negotiate economic compensation, they filed a complaint with the Arbitration Commission, demanding that the company pay the economic compensation for the termination of the labor contract for one month's wages.

The Arbitration Commission supported the request of Xiao Zhang's appeal.

The company refused to accept suit.

After hearing the court, the court decided that the company should pay the economic compensation for the termination of the labor contract for one month's salary.

Judge Hu Gaochong held that, according to the provisions of the labor contract law, the termination of a fixed term labor contract, unless the employer maintains or improves the conditions stipulated in the labor contract, renews the labor contract, and the worker does not agree to renew it, otherwise, the employer shall pay the financial compensation to the laborers in accordance with the working life and wage standards of the laborers.

In addition, according to the fortieth provision of the Beijing labor contract stipulation, the employer shall, prior to the expiration of the term of the labor contract, notify the worker in writing by terminating or renewing the intention of the labor contract 30 days in advance, and terminating or renewing the labor contract through consultation.

If the employer fails to give notice 30 days prior to the termination of the labor contract

It should pay wages for workers one month's notice.

Workers must pay attention to avoid signing the blank documents such as employee turnover list.

The court found that when some employees quit, the employer signed the employee blank form, and later on the form indicated that the reason for resignation was "resignation" or "refusal to sign a contract" and so on. In this case, unless the laborer had sufficient evidence to prove that his resignation form was blank, it would be very difficult to claim economic compensation.

Ms. Tan is the head waiter of the Yangtze River catering company. Since birth, she has enjoyed maternity leave since the end of 2011.

But during the vacation, the company did not pay her wages.

In early March 2012, Ms. Tan resigned on the grounds that the company failed to pay labor remuneration on time.

After that, she appeals to the labor arbitration commission, demanding that the company pay the compensation for the cancellation of the labor contract, and reissue the wages during the maternity leave to obtain the support of the Arbitration Commission.

The company refused to accept the prosecution and argued that Ms. Tan was resigning on her own and the company did not have to pay compensation.

The court held that women workers enjoyed the right to leave production in accordance with the law, and the wages paid during maternity leave should not be reduced.

Under the premise that the company failed to pay maternity leave wages, even if Mrs. Tan first proposed the termination of labor relations, the company should also pay compensation.

The thirty-seventh clause of the labor contract law stipulates: "the worker can notify the employing unit in writing in advance thirty days, and may terminate the labor contract.

The employer can notify the employing unit three days in advance of the probation period, and may terminate the labor contract. "

Judge Hu Gaochong said that in general the so-called "resignation of laborers" refers to this situation.

At this time, employers do not have to pay laborers financial compensation.

However, according to the thirty-eighth provision of the labor contract law, the employer may terminate the labor contract if he fails to provide labor protection or labor conditions in accordance with the labor contract, fails to pay the full amount of labor remuneration in time, fails to pay social insurance premiums for workers in accordance with the law, and does not damage the rights and interests of labourers or forced labor, and the employing unit shall pay economic compensation to the laborers.

Although the law provides for workers.

However, the exercise of this right is not without restriction.

First of all, workers should make sure that not all resignations can be compensated.

If he resigns for personal reasons or fails to sign a labor contract or fails to pay social insurance fully, he or she will not have to pay financial compensation.

Secondly, workers should also perform the necessary duty of disclosure. It is not a personal reason to resign in resignation, and the resignation letter should be delivered to the normal job pfer. Otherwise, it may also cause litigation for the loss of the employer.

How do we calculate the economic compensation? Judge Hu Gao Chong said that this involves two questions: the number of years and the number of bases. We should reasonably determine the base and number of years of economic compensation.

According to the forty-seventh provision of the labor contract law, the economic compensation shall be paid to the laborers according to the number of years worked by the laborers in their units and the wages paid for one month per year.

Those who are less than 6 months old or less than 1 years shall pay 1 months' compensation to the laborers for half a month's wages according to 1 years' calculation.

At the same time,

The regulations of the implementation Ordinance stipulate: "if the laborer is assigned to work in the new unit from the original employer unit for the reason of himself or herself, the working life of the worker in the original unit shall be calculated as the working life of the new employer, and the original employer has already paid the economic compensation to the laborer. When the new employer fails to calculate the working life of the laborer in the original employing unit when the work period of calculating and paying the economic compensation is calculated according to the law, the labor contract shall be terminated and terminated."

This is the basic method of determining the number of years.

According to the eleventh provision of the Ministry of labor's "economic compensation for violation and dissolution of labor contracts", the standard of wage calculation for economic compensation refers to the monthly average wage of workers 12 months before the contract is terminated.

Wages include time wages, piecework wages, bonuses, allowances and allowances, overtime pay and wages paid under special circumstances, including subsidies for living and housing subsidies.

The following labor income of workers is not included in the scope of the economic compensation base: social insurance and welfare costs; labor protection costs; all kinds of labor remuneration and other labor income that are not included in the total wages, such as the invention creation award, as well as contributions, lecture fees and plation fees.

In practice, we should pay attention to the fact that the monthly salary of laborers is higher than that of the Municipal People's Government of the municipality directly under the central government or the municipal district where the employing units are located, and the average monthly wages of the workers in the region in the previous year are 3 times. The standard of paying the economic compensation to them is 3 times the average monthly wage of the workers, and the maximum period of payment for the economic compensation to them is not more than 12 years.

This is the upper limit of the economic compensation base and number of years.

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