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At present, due to the impact of the epidemic, some employers have transferred employees, cut salaries, or even terminated labor relations to reduce losses out of consideration of economic benefits. Some of them have adopted some "methods" to maliciously lower the compensation coefficient , indirectly avoiding legal obligations.
The lawyer reminded that considering the long-term interests of the employer, it is recommended to perform the labor relationship according to the law, negotiate with the labor union or employees on wage payment according to the law; when the majority of employees encounter similar situations, they must pay attention to keeping the corresponding evidence materials for the termination of the labor relationship, so that Prepare for entitlement.
"Lawyer Wei, the labor arbitration award states that the company should pay more than 43,000 yuan in compensation and other expenses... Thank you very much for your help. Without your persistence, I might not have gotten such a good result." January On the 10th, after receiving the labor arbitration award, Ms. Zhang from Shunyi Village, Beijing, expressed her gratitude to Wei Zhiyang, an aid lawyer of the Beijing Federation of Trade Unions.
Since the company did not arrange work for Ms. Zhang for a long time, she was asked to wait for the next step at home, and she waited for more than a year.
In the end, what was waiting was a unilateral notice to terminate the labor relationship.
Worker fired after a year on the job
Ms. Zhang joined a company in Shunyi, Beijing a few years ago. She is mainly responsible for the work on the company's internal assembly line, and calculates her wages by piecework.
The two parties signed a written labor contract, and the company paid social insurance premiums for them according to law.
In the case of stable benefits, the hardworking and motivated Ms. Zhang was praised by the person in charge of the company many times during her tenure, and she also received additional rewards from the company many times, becoming a pacesetter in the company's work.
However, due to the multiple impacts of the new crown epidemic and the adjustment of the company's internal business strategy, the company has gradually planned to move its production focus from the Beijing area to other provinces and cities starting in 2020.
The company had negotiated with Ms. Zhang whether to agree to go to other provinces and cities to continue working. However, considering various reasons such as family and travel, Ms. Zhang clearly rejected the company's job transfer arrangement and expressed that she would continue to work in the company. original job.
In the next year or so, the company's production and operation can only be described as "stumbling": work for half a month, stop for half a month, come when there is work, and stay if there is no work.
But even under such circumstances, Ms. Zhang still went to work and clocked in according to the company's regulations until the production and operation of the company's Beijing factory stopped completely.
For more than a year, the company has paid social insurance premiums for Ms. Zhang based on the lower limit of payment, and issued the minimum living security expenses.
On January 4, 2022, Ms. Zhang received a notice of termination of labor relationship from the company.
In desperation, Ms. Zhang filed an arbitration application with the Labor and Personnel Dispute Committee, demanding that the company pay the wage difference, untaken annual leave wages, compensation for illegal termination of the labor contract, etc.
The company is suspected of maliciously lowering the compensation coefficient
Litigation is not easy. Ms. Zhang, who is not very educated, is always worried. try.
Ms. Zhang came to Beijing Shunyi District Federation of Trade Unions to seek legal help.
After learning about Ms. Zhang's situation, the Shunyi District Federation of Trade Unions immediately reported to the Legal Service Center of the Beijing Federation of Trade Unions, accepted Ms. Zhang's application for legal aid in accordance with the regulations, and assigned assistance lawyer Wei Zhiyang to assist her in labor rights protection.
Based on Ms. Zhang's case statement, lawyer Wei Zhiyang found that although the company officially issued the labor relationship termination document at the beginning of 2022, and the company claimed that the reason for the termination was "company Significant changes have taken place in the operation and production situation", but in fact the company's production situation has almost "stopped" as early as more than a year ago.
For more than a year, Ms. Zhang's monthly living expenses were only the "waiting wages" stipulated by the state, which was 70% of the minimum wage standard in Beijing last year. The company's actions clearly lowered the compensation coefficient maliciously. , Indirect evasion of legal obligations.
During the arbitral hearing, the two parties engaged in a fierce game against the focus of the dispute on the "dissolution of the labor relationship".
The company insisted that due to major changes in the objective situation, the company's operating conditions could no longer maintain Ms. Zhang's original job, so the labor relationship had to be terminated as a last resort, and therefore agreed to pay economic compensation for the corresponding number of years in accordance with the Labor Contract Law.
Compensation for illegal termination of labor relations should be paid
In this regard, lawyer Wei Zhiyang refuted, and believed that the company clearly mentioned in the court hearing that the factory had gradually transferred the main production work to other provinces and cities as early as more than a year ago, and had gradually reduced the scope of work for employees. The reason is not objective force majeure, but the internal operation adjustment of the company, and since the employees have been working in a certain district of Beijing since they joined the company, and their family lives in a certain district, it is clear that they do not accept the job transfer arrangement coordinated by the company at that time. Yes, even if he was transferred to "on-duty status" by the company, there was no formal transfer order.
At the same time, Ms. Zhang has been "waiting for work" for more than a year, and the time the company proposed to terminate the labor relationship is obviously beyond the reasonable and necessary limit from the starting point of the employee's waiting time, which is suspected of maliciously lowering the compensation standard.
Lawyer Wei Zhiyang said that Article 40 of the Labor Contract Law stipulates that “in any of the following circumstances, the employer may terminate the labor contract by notifying the laborer in writing 30 days in advance or by paying the laborer one month’s salary: The objective circumstances on which the contract is based have undergone major changes, making it impossible to perform the labor contract, and the employer and the employee have negotiated and failed to reach an agreement on changing the content of the labor contract”; at the same time, Article 46 stipulates that “the following circumstances 1, the employing unit shall pay economic compensation to the laborer: if the employing unit terminates the labor contract in accordance with the provisions of Article 40 of this Law”; Article 87 stipulates that “where the employing unit violates the provisions of this Law by rescinding or terminating the labor contract, it shall Compensation shall be paid to laborers in accordance with twice the economic compensation standard stipulated in Article 47 of this Law".
In this case, the company’s termination of the labor relationship was obviously unreasonable in terms of the time span and the adjustment of the working area. The Arbitration Commission finally adopted the opinion of the aid lawyer and determined that the company’s termination of the labor relationship was not a major objective situation. If the situation changes, and the behavior obviously exceeds the normal and necessary limit of public perception, it should pay more than 43,000 yuan in compensation for employees' illegal termination of labor relations.
Lawyer Cao Zhiyong, a member of the Labor Model Legal Service Group of the Legal Service Center of the Beijing Federation of Trade Unions, said that currently, due to the impact of the epidemic, many employers have transferred employees, cut salaries, or even terminated labor relations out of consideration for economic benefits, in order to make up for the loss.
Considering the long-term interests of the employer, it is recommended to perform labor relations in accordance with the law, and negotiate with trade unions or employees on wage payment in accordance with the law.
At the same time, he reminded the majority of employees that when encountering similar situations, they must pay attention to keeping the corresponding evidence materials for the termination of the labor relationship, so as to prepare for rights protection.