Joker is an employee of Company A, and the term of the employment contract is from August 1, 2017 to July 31, 2020. Joker issued a letter of commitment to the company: ". .The company also informed me that I should pay various social insurance in accordance with the law, and considering my own situation, I voluntarily did not pay various social insurance fees (including pension, medical care, unemployment, work-related injury, and maternity insurance), and I was responsible for the consequences arising therefrom, and the company had nothing to do with it. "During his tenure, the company did not contribute social insurance to Joker.
On June 30, 2020, the employment relationship between Joker and the company was terminated. On July 23, 2020, Joker filed an arbitration application, arguing that the company had failed to pay social insurance premiums, resulting in the company's inability to enjoy unemployment benefits, and demanded that the company compensate for the loss of unemployment benefits.
The arbitration commission ordered the company to pay Joker 17,040 yuan for the loss of unemployment benefits. The company was dissatisfied with the outcome of the arbitral award and sued the court of first instance.
The court of first instance: Joker's voluntary non-payment of social insurance and his claim that the company compensated him for the loss of unemployment benefits violated the principle of good faith, and the court of first instance held that the focus of the dispute in this case was whether the employer should bear the responsibility for Joker's voluntary non-payment of social insurance. The court of first instance held that civil entities engaged in civil activities should follow the principles of fairness and good faith, and the parties have the right to dispose of their own civil rights and litigation rights within the scope prescribed by law.
In this case, Joker clearly stated in the form of a written undertaking that the company had informed the company that it should pay various social insurance in accordance with the law, but it was unwilling to pay social insurance due to its own reasons, and that it was responsible for the consequences arising therefrom, and that the undertaking was an expression of Joker's true intention and a disposition of his own rights, and Joker did not provide evidence to prove that the employer had fraud, coercion and taking advantage of the danger of others. Now, after leaving the company, Joker claims that the company compensates him for the loss of unemployment benefits on the grounds that the company has not paid social insurance for him, which is obviously not in line with the principle of good faith.
In addition, according to the relevant laws and regulations, the employer shall pay social insurance for the employee in accordance with the law, which is the obligation of the employer, and if the employee applies for non-payment of social insurance, the employer may make a decision to refuse to employ the employee, but the employer still proposes not to pay social insurance and makes a commitment to bear the consequences under the circumstances of the law, and the company does not let the employee lose the job opportunity under such circumstances, but still gives him a job. In this case, the employee's rights and interests are not completely unprotected due to his voluntary waiver of social insurance, and he can still claim protection from the relevant functional departments, and the company in this case also agreed to pay social insurance premiums for him. At the same time, the benefits of unemployment insurance benefits have not been completely lost due to the failure to be insured, and there is still a chance to apply for them again in the future. In light of the above-mentioned circumstances, Joker promised not to pay social insurance and expressed his intention to bear the consequences, but after leaving the company, he demanded that the employer bear the loss of unemployment insurance was obviously contrary to the principle of good faith, and if it was supported, it would damage the principle of fairness, and it was also contrary to the value orientation and moral code of fairness and integrity in the core values of socialism, so the court of first instance did not support Joker's claim that the company should bear the loss of unemployment insurance money. In summary, the first-instance judgment that the company did not need to pay joker unemployment benefits and lost 17,040 yuan.
Dissatisfied, Joker appealed, arguing that the company's failure to pay social insurance to him was illegal, and the resulting unemployment insurance benefits should be paid in accordance with the law.
The court of second instance held that the payment of social insurance is the legal obligation of the employer, and the employer cannot be exempted regardless of whether the employee declares to waive the social insurance. The court of second instance held that the focus of the dispute in this case was whether the employer should bear the loss of unemployment benefits arising from Joker's voluntary waiver of social insurance contributions.
It is the legal obligation of the employer to pay social insurance for the employee, and the employer cannot be exempted regardless of whether the employee declares to waive the social insurance. In this case, although Joker promised in writing that he was unwilling to pay social insurance for his own reasons, the promise violated the mandatory provisions of the law and should be invalid. Joker's assertion that the company bears the loss of unemployment benefits is legally valid and should be supported. In summary, Joker's appeal is upheld and should be upheld; The first-instance judgment erred in the application of law, and this court should correct it. The second-instance judgment is as follows: the company shall pay Wang Xiaobin 17,040 yuan for the loss of unemployment benefits within three days after the judgment takes effect. (The names of the parties are pseudonyms, if there is any similarity, it is purely a coincidence, please do not sit in the opposite number).
As a human resources manager, you should clearly understand that it is the legal obligation of the employer to pay social insurance, and the employer cannot be exempted regardless of whether the employee declares to waive the social insurance. All commitments that violate the mandatory laws and regulations are null and void. If the employee applies for non-payment of social insurance, the employer may make a decision to refuse the employment after the negotiation between the two parties fails.