As the graduation ceremonies of major colleges and universities are over, graduates have started their careers.
When you first enter the workplace, you must be full of longing and yearning, but you must also be familiar with and master the basic skills of labor rights protection while feeling happy.
This edition invites Judge Tian Lu of the Third Civil Division of the Third Intermediate People's Court of Beijing to talk about the "pits" that newcomers in the workplace should avoid through actual cases.
Case number one
Doesn’t need to sign a written labor contract to fill out the entry registration form?
Xiaowu graduated from a university in Beijing in June 2018 and joined a trade company in Beijing on July 27, 2018. The two parties did not sign a written labor contract.
Xiao Wu's monthly salary is 9,000 yuan, and his last attendance is until April 30, 2019.
Xiaowu advocated that Zhang XX, the legal representative of a Beijing commerce company, paid his salary from July to December 2018 through Alipay, and Ma XX, a supervisor of a Beijing commerce company, paid his salary from January to April 2019 through WeChat transfer. .
Later Xiaowu applied for labor arbitration on the grounds that a Beijing commerce company did not sign a written labor contract with it, requesting: confirm that Xiaowu had a labor relationship with a Beijing commerce company from July 27, 2018 to April 30, 2019; A trade company in Beijing paid twice the wage difference for unsigned labor contracts.
A trade company in Beijing denied the existence of a labor relationship with Xiaowu and advocated that the two parties were in a cooperative relationship; and believed that even if the company had a labor relationship with Xiaowu, Xiaowu had already filled out the "New Employee Entry Registration Form" at the time of entry. There are Xiaowu’s personal information, family member information, learning experience, as well as Xiaowu’s job position, working period, salary payment standards, etc., and the last column also prints: "Personal statement: fully obey the company’s work arrangements after entering the job, strictly Comply with various rules and regulations.” The registration form is equivalent to a labor contract, so the company should not pay Xiaowu twice the wage difference of the unsigned labor contract.
In the end, after labor arbitration and court hearings, the judgment supported all Xiaowu's requests.
[Judge's Statement]
Signing a labor contract must have necessary clauses
Judge Tian Lu stated that determining whether there is a labor relationship between an employee and the unit is a prerequisite for clarifying that employees enjoy various labor rights in accordance with the law.
In this case, although a Beijing trading company claimed that it had a cooperative relationship with Xiaowu, the company did not submit valid evidence to support the cooperative relationship it claimed.
From the transfer records submitted by Xiaowu, the legal representative of the company Zhang and Ma, the supervisor, it can be seen that the payment time of these payments is periodic and the payment amount is relatively stable, which is consistent with the general characteristics of salary payment.
Secondly, the "New Employee Entry Registration Form" filled out by Xiaowu clearly stated that "after joining the company, we fully obey the company's work arrangements and strictly abide by the rules and regulations", indicating that the company has conducted employment management actions on Xiaowu, so both parties Should constitute a labor relationship.
Article 10 of China’s Labor Contract Law stipulates: “To establish a labor relationship, a written labor contract shall be concluded. If a labor relationship has been established but a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. If the unit and the employee conclude a labor contract before the employment, the labor relationship shall be established from the date of employment.” Article 82 stipulates: “The employer has not concluded a written labor contract with the employee for more than one month but less than one year from the date of employment. In case of contract, the employee shall be paid twice the monthly salary. If the employer violates the provisions of this Law and fails to enter into an open-term labor contract with the employee, it shall pay the employee every month from the date when the open-ended labor contract should be concluded. Double the wages.” It can be seen that the current labor law in China stipulates the mandatory obligation of employers to conclude written labor contracts with employees. For employers who fail to sign written labor contracts with employees in accordance with the law, employees The right to require the employer to pay the double wage difference of the unsigned labor contract.
At the same time, Article 17 of the "Labor Contract Law" also clearly stipulates the mandatory clauses of the labor contract.
Although a Beijing trade company advocated that Xiaowu filled out the "New Employee Entry Registration Form" when entering the job, the "New Employee Entry Registration Form" did not stipulate Xiaowu's work content, working location, working hours, rest time, labor protection, The labor conditions and other matters do not have the necessary clauses of the labor contract, so it cannot be deemed that the two parties have signed a written labor contract. A Beijing trading company should pay twice the wage difference of the unsigned written labor contract in accordance with the law.
[Judge Tips]
Be sure to pay attention to the rights and interests clauses when signing a labor contract
Judge Tian Lu reminded newcomers in the workplace that they must sign a formal labor contract with the employer when entering the workplace. The labor contract is an agreement between the employee and the employer to establish the labor relationship, clarify the rights and obligations of both parties, and also protect the rights and interests of the laborers in the event of disputes between the two parties. One of the most important evidence.
The labor contract provided by the employer is often in format. When signing a labor contract, newcomers in the workplace should pay special attention to the working period, labor remuneration, work content, working location, working hours, rest and vacation, social insurance, labor protection, and working conditions. And occupational hazard protection and other provisions directly related to labor rights to ensure that their labor rights are effectively protected.
Case two
During the probation period, can the employer be dismissed if it wants to be dismissed?
After graduating from graduate school, Xiao Liu joined a sporting goods company on July 31, 2017 as an operations manager, with a monthly salary of 10,000 yuan. The two parties signed a period from July 31, 2017 to July 30, 2020. Labor Contract.
It is stipulated in the labor contract: "The probation period is 6 months from the date the employee starts working. During the probation period, both the company and the employee can terminate this contract in the manner prescribed by relevant laws. If the probation period ends and the contract has not been If terminated, the employee will automatically become a full employee of the company."
A sporting goods company issued a "Labor Contract Termination Notice" to Xiao Liu on January 31, 2018, stating: "Due to Xiao Liu's poor working ability during the probation period, poor execution, and no sense of responsibility, the company issued a notice in 2018. The labor relationship with Xiao Liu was terminated on January 31."
Xiao Liu believed that a sporting goods company illegally terminated the labor contract, so he applied for labor arbitration and demanded that the sporting goods company pay 10,000 yuan in compensation for the illegal termination of the labor contract.
A sporting goods company believes that during the probation period, the company has the right to decide whether to officially hire Liu according to his work ability. Because Xiao Liu’s work ability is poor during the probation period, he does not meet the employment conditions, so the company Have the right to terminate the labor relationship with them.
In the end, both labor arbitration and court hearings concluded that because a sporting goods company did not submit evidence to prove the company’s specific employment conditions and the factual basis that Xiao Liu did not meet the employment conditions, the termination of the labor contract with Xiao Liu was illegal. Pay compensation for the illegal termination of the labor contract.
[Judge's Statement]
Employers should fulfill their burden of proof to terminate the labor contract
Judge Tian Lu stated that during the probation period, the employer cannot terminate the labor contract at will.
In this regard, Article 21 of the "Labor Contract Law" clearly stipulates: "During the probation period, unless the employee has the circumstances stipulated in Article 39 and Article 40, Paragraph 1 and Paragraph 2 of this law, the employment The unit may not terminate the labor contract. If the employer terminates the labor contract during the probation period, it shall explain the reasons to the worker.” Article 39 stipulates that “If the employee has one of the following circumstances, the employer may terminate the labor contract: (1) ) During the probation period, it is proved that the employment conditions are not met..."
In practice, when an employer terminates a labor contract with a worker on the grounds that the worker does not meet the employment conditions during the probation period, it shall provide evidence to prove that it has clearly informed the worker of the employment conditions and provide evidence to prove the existence of the worker during the probation period Circumstances of "not meeting the employment conditions"; if the employer fails to fulfill the above-mentioned burden of proof, it is likely to be deemed to be an illegal termination of the labor contract.
In this case, although a sporting goods company claimed that Liu had poor work ability, poor execution, no sense of responsibility, and did not meet the employment conditions, a sporting goods company failed to provide corresponding evidence to support this. Therefore, the labor arbitration and the court all determined that Liu The dissolution of the sporting goods company is illegal dissolution.
[Judge Tips]
The duration and frequency of the probation period are strictly regulated
Judge Tian Lu reminds every newcomer to the workplace that when they first enter the workplace, many employers will stipulate a probation period with the laborer in the labor contract. my country’s current labor laws and regulations clearly stipulate the protection of laborers’ rights during the probation period. For example, the duration and frequency of the probation period are strictly limited, the wage standard during the probation period is clarified, and the right of termination of the employer during the probation period is strictly limited.
Newcomers in the workplace must continuously improve their legal awareness, know how to use the law, and protect their legal labor rights during the probation period in accordance with the law.
Case three
Do I need to pay liquidated damages for job-hopping before the end of the service period?
After graduation, Xiao Zheng joined a company in Beijing on July 16, 2018, and the two parties signed a three-year labor contract.
On February 25, 2019, the company signed a "Training Agreement" with Xiao Zheng, stipulating that the company will send Xiao Zheng to an organization in South Korea for business training. The training period is six months; after the training, Xiao Zheng needs to continue to serve the company5 Over years; if Xiao Zheng has worked for less than 5 years before leaving the company, he must pay a penalty of 100,000 yuan equivalent to the training fee before going through the relevant procedures.
Later Xiaozheng was sent by the company to South Korea for relevant business training, and the company reimbursed him for air tickets, visas, insurance, training, accommodation and other expenses.
After the training period expired, Xiao Zheng returned to China.
Two months after returning to China, Xiao Zheng submitted his resignation to a Beijing company for personal reasons.
Later, a company in Beijing filed an application for arbitration, claiming that Xiaozheng violated the 5-year service period stipulated in the "Training Agreement", so Xiaozheng was required to pay a penalty of 100,000 yuan.
Xiao Zheng argued that the company's actual reimbursement of expenses did not reach 100,000 yuan, and because the company leaders deliberately made things difficult for Xiao Zheng during the work process, he was forced to resign.
Xiao Zheng failed to submit corresponding evidence on the fact that he was forced to resign.
After labor arbitration and court hearings, in light of the company's actual reimbursement of expenses and Xiao Zheng's time in office, he was ordered to pay the company the corresponding liquidated damages as appropriate.
[Judge's Statement]
The employer has the right to claim liquidated damages in accordance with the contract
Judge Tian Lu stated that Article 22 of the current "Labor Contract Law" stipulates: "Employers provide employees with special training fees, and if they provide professional and technical training, they can enter into an agreement with the employee and stipulate the service period. Labor. If the employer violates the service period agreement, the employer shall pay the employer liquidated damages in accordance with the contract. The amount of the liquidated damages shall not exceed the training expenses provided by the employer. The employer requires the employee to pay the liquidated damages shall not exceed the share of the unfulfilled portion of the service period. Training expenses. If the employer and the employee agree on the service period, it does not affect the increase in the labor remuneration of the employee during the service period in accordance with the normal wage adjustment mechanism.” It can be seen that the law recognizes the agreement between the employee and the employer for the service period and Liquidated damages, but at the same time, the service period is more rigorous. The provision of special training fees for employees by employers is the basis for claiming liquidated damages.
Employers provide workers with training fees and pay certain benefits. In fact, they have invested in workers so that workers can benefit from it and learn special skills, knowledge and skills.
However, the employer’s approach is not free. Its purpose is to provide labor for the employer after the employee has completed his studies. Therefore, the law stipulates that the employer can agree on the service period with the employee, which can greatly mobilize the employer to provide training. Enthusiasm, increase capital investment in special training for workers.
And once a worker, like Xiao Zheng, resigns before the end of the service period, the employer's expectations will come to nothing.
At this time, the law gives the employer the right to claim liquidated damages according to the agreement. However, considering the particularity of the labor contract, the law also restricts the amount of liquidated damages agreed by both parties, that is, the liquidated damages shall not exceed the unfulfilled part of the service period and shall be apportioned. Cost.
[Judge Tips]
If there is an agreed service period, the contract shall be performed in good faith
Judge Tian Lu reminded every newcomer in the workplace to pay attention to whether the employer provides special training and whether there is a clear agreement on the service period in the process of signing and fulfilling the labor contract.
If such an agreement exists, the worker should fully consider the service period, make reasonable plans for his future work and development, and perform the contract in good faith in accordance with the principle of good faith; if the worker violates the service period agreement, the employer has the right Laborers are required to bear corresponding liabilities for breach of contract in accordance with the law.
Case four
Can the unit be compensated if it fails to issue a resignation certificate in time?
After graduating from graduate school, Xiao Yang joined a technology company in Beijing on July 18, 2017 as a software development engineer.
The two parties signed a three-year "Labor Contract", stipulating that Xiao Yang's monthly salary was 13,000 yuan.
On August 10, 2018, Xiao Yang submitted his resignation to a technology company in Beijing, and the labor relationship between the two parties was terminated.
Hou Xiaoyang argued that because a Beijing technology company had consistently refused to issue a resignation certificate for Xiao Yang, Xiao Yang was unable to join a new unit. Therefore, Xiao Yang applied for arbitration and required a Beijing technology company to issue a certificate of termination of the labor contract and compensate him. The loss of 200,000 yuan caused by the issuance of the resignation certificate.
Xiao Yang submitted the following evidentiary materials to prove his loss: "Notice of Employment", stating that "Mr. Yang...you must provide the following information to the Human Resources Department for registration: original certificate of resignation and 1 copy (required)... A technology company in Shenzhen, September 3, 2018"; "Employment Notice Cancellation Agreement", which states "This is because Mr. Xiao Yang, the person proposed by our company, cannot provide the resignation certificate of his previous employer, so he cannot go through the entry formalities. 。After our company negotiated with Mr. Xiao Yang, the following agreement was reached: Mr. Xiao Yang’s own employment notice was invalidated, and the responsibility was on Mr. Xiao Yang’s side; the company’s Sun Manager and friend salesperson Mr. Xiao Yang’s travel expenses were 1,000 yuan; this matter has been amicably resolved , The two parties have no further objections; this agreement is in duplicate. October 8, 2018".
The email of Xiao Yang’s interview notification stated "Hello, Mr. Yang, your interview has passed, and you are welcome to join our team. Please come to our company to complete the entry procedures on January 7, 2019. Position: Technology Vice President. Monthly salary: 22,000 yuan. Contract period: 3 years. You need to bring the following materials when you come... the original certificate of resignation from the previous company."
A technology company in Beijing recognized the authenticity of the aforementioned "Employment Notice" and "Employment Notice Cancellation Agreement", but did not recognize the authenticity of the interview notification email, nor did it recognize that it caused Xiao Yang's losses.
A Beijing technology company claimed that after it terminated the labor relationship with Xiao Yang, the company was unable to issue a resignation certificate to him because Xiao Yang did not hand over work to the company. Therefore, the responsibility was not with the company and Xiao Yang failed to obtain the resignation certificate in time, which was caused by him deliberately.
Xiao Yang did not recognize the claims of a Beijing technology company, believing that he contacted a Beijing technology company many times, but the company refused to issue a resignation certificate.
The Arbitration Commission and the court held that after the trial, the employer should issue a certificate of dissolution or termination of the labor contract when rescinding or terminating the labor contract, so Xiao Yang's request for a Beijing technology company to issue a certificate of resignation can be established; at the same time, Xiao Yang provided Evidence shows that because a Beijing technology company failed to provide a resignation certificate, Xiao Yang missed the job opportunity and caused his economic losses. Therefore, referring to the actual situation of Xiao Yang’s salary level, unemployed time, industry treatment and other actual conditions, a certain Beijing technology company The company compensates Xiao Yang for the loss of 50,000 yuan.
[Judge's Statement]
The employer shall issue a resignation certificate within 15 days after the termination of the labor contract
Judge Tian Lu stated that the first paragraph of Article 50 of my country’s Labor Contract Law stipulates: “The employer shall issue a certificate of dissolution or termination of the labor contract when dissolving or terminating the labor contract, and handle the file for the laborer within 15 days. Procedures for the transfer of relations with social insurance.” Issuing a resignation certificate is a legal obligation of the employer.
For the employer, the resignation certificate is the clearest evidence about the termination of the labor relationship between the employer and the employee, and it is also a public announcement to other employers and the society; the new employer can determine that the employee it has hired has been with the original employer. The unit terminates or terminates the labor relationship to avoid the legal risk that the original employer requires the new employer to bear joint and several liability for compensation in accordance with Article 91 of the Labor Contract Law.
For resigned employees, the resignation certificate is the proof and necessary materials for transferring social insurance and applying for unemployment insurance benefits.
In addition, in the event of a labor dispute between the employer and the employee, the resignation certificate may also become an important evidence for determining the facts of the relevant case.
Article 89 of the "Labor Contract Law" stipulates: "If the employer violates the provisions of this law and fails to issue a written certificate of dissolution or termination of the labor contract to the worker, the labor administrative department shall order it to make corrections; if any damage is caused to the worker, it shall be liable for compensation. responsibility."
In this case, according to the relevant evidence provided by Xiao Yang, it can be seen that because a Beijing technology company did not issue a resignation certificate in time, which caused it to lose the job opportunity, Xiao Yang has the right to demand compensation from a Beijing technology company.
Although a Beijing technology company claimed that it did not issue a resignation certificate because Xiao Yang did not handle the handover, a Beijing technology company did not submit sufficient evidence to prove it; and even if Xiao Yang did not handle the handover, the company must issue it for him Proof of resignation.
[Judge Tips]
Obtain a resignation certificate in time to prevent you from being unable to claim unemployment insurance benefits
Here, the judge would like to remind all newcomers in the workplace that when they terminate or terminate their labor relationship with the employer, they should promptly request the employer to issue a resignation certificate for them to prevent missing opportunities for reemployment or the risk of not being able to apply for unemployment insurance. .
In addition, with regard to the resignation certificate issued by the employer, attention should be paid to review whether it has the legally necessary requirements.
According to Article 24 of the Implementation Regulations of the Labor Contract Law, the resignation certificate must state the term of the labor contract, the date of cancellation or termination of the labor contract, the job position, and the number of years of work in the unit.
If the employer fails to issue a resignation certificate in time, and causes damage to him, the employee may demand the employer to bear the corresponding compensation liability and protect his rights and interests in a timely manner.
This edition / our reporter Zhu Jianyong