Company A is a foreign trade order-based production enterprise, and in March 2022, two people B and C will be recruited to enter the factory, and the jobs are viscose.
After the two joined the company, they often disobeyed the arrangement and often asked for a salary increase, otherwise they threatened to leave their jobs directly and not make orders, especially during the rush of goods in the factory.
In August 2023, B did not obey the company's arrangement on the factory floor, and dragged other employees to quarrel for no reason, while C cheered and coaxed. During this period, many employees watched onlookers, which seriously affected the production and operation order of Company A. Later, after being strongly dissuaded by others, BC proposed to settle the salary and leave the company on the same day, and on the day they left Company A, they immediately went to the Guangzhou Labor and Personnel Arbitration Commission to file an arbitration and request for compensation.
In October, the Municipal Arbitration Commission organized mediation between the two parties during the hearing, and Company A proposed to welcome the two to return to the factory to work and the two parties to continue to improve the original contract for the sake of tolerance and understanding BC, and BC agreed to return to the factory on November 1 to continue to perform the contract, but required Company A to pay 5,000 yuan per person within three days, Company A agreed to the plan, and also paid the mediation payment on time in accordance with the mediation letter, and the Municipal Arbitration Commission also issued a mediation letter.
Since the original labor contract signed by the two parties was relatively brief, Company A drafted a supplementary agreement based on the recommendation of the arbitral tribunal, which further refined and clarified the rights and obligations of both parties on the basis of the original contract, and informed the two parties in advance. BC was negotiated and partially modified.
When BC came to the factory on November 1, he refused to sign supplementary agreements and other documents, and refused to continue to work. Company A issued a notice again urging them to continue to work, but not only did they not come to work, but on November 3, they filed this labor arbitration with the Municipal Arbitration Commission, demanding double wages and economic compensation totaling more than 50,000 yuan.
Company A found our team, since the case in October was not handled by us, after I inquired about the process, I felt that this is a relatively rare case, according to the cases we have handled before, it is generally not recommended that the two parties continue to perform the contract, because the labor relationship between the two parties will continue to perform the labor contract after the termination of the labor relationship, and the actual trust between the two parties has been broken, and it is more difficult to continue the front edge. After reading the file, I believe that there are two issues in this case regarding the continued performance of the contract that need to be studied:
1. After the labor relationship between the two parties has been terminated, if the labor contract is agreed to be performed through mediation, whether the labor relationship from August to October exists;
On January 1, after BC returned to Company A, he did not continue to work, does it constitute the termination of the employment relationship, and what is the reason for the termination of the labor contract?
In addition, the person in charge of Company A also filed a counter-application because the two BC did not comply with the mediation record, so Company A demanded that the two people return the living expenses they had paid before, and demanded compensation for losses, and hoped that the two cases would be heard together.
Because the counter-application of the Municipal Arbitration Commission is relatively special, it is necessary to go to the case filing tribunal to file a separate case, and it is not necessarily combined for trial, and this case was taken over at the beginning of December, but the case will be ** at the end of December, so whether the counter-application can be filed has an important impact on the trial and outcome of this case.
After working overtime, we completed the preparation of the counter-application and submitted the case within 2 days, and communicated with the arbitrator who handled it, and at first the arbitrator replied that the case could not be filed, because the time limit for presenting evidence and the time limit for defense would take more than 10 days, and the case would need to be reviewed for 7 days, which had exceeded the ** time and needed to be tried separately. However, we did not give up, and explained to the arbitrator that this case had been arbitrated before, and that the arbitration request of this counterclaim was closely related to BC's arbitration claim, and also had an important impact on finding out the reasons why the parties did not continue to perform the contract in this case.
Two days later, the arbitrator replied that he decided to speed up the case and consolidate the trial! We take a solid step towards success.
The employee proposed that it had been forced to terminate on November 3 on the grounds that Company A had failed to provide working conditions and pay social security, and I pointed out that even if the termination of the employment relationship between the two parties should have been on November 1, and that after BC returned on that day, no labor was actually provided, so even if the employment relationship between the two parties continued to be performed, it should be determined that BC did not provide labor on November 1. Resignation is considered to be due to personal reasons.
Due to the merger of the two cases and the great controversy between the two parties, the case was held until about 7 p.m., and after the trial, Company A said that it would no longer accept mediation. and insist on their own counter-application request.
After hearing, the arbitration commission issued an award, holding that the employment relationship between BC and Company A had been terminated in August 2023, and the two parties had no longer formed a subordinate relationship between management and management, and BC did not provide labor after returning to the company on November 1, so no employment relationship was established. In the end, all of BC's arbitration claims were dismissed, and we won by no margin.
This is a relatively special case, and we rarely encounter cases in which the two parties continue to perform the contract after the termination of the employment relationship, and generally only after the employee has been illegally terminated during the third period (pregnancy, childbirth, lactation), etc., the employee proposes to resume the employment relationship.
In this case, the arbitration committee argued that there was no employment relationship between the two parties because the two employees returned on November 1 and did not provide labor for Company A.
I have a different view. Since the two parties signed the mediation record in August, and both parties agreed to continue to perform the labor contract, it should be deemed that the two parties have reached an agreement, that is, the original employment relationship between the two parties should exist, and although the two employees did not provide labor from August to October, this fact cannot be denied. Therefore, our defense submitted that on November 1, when the two employees did not continue to work for Company A, it should be deemed that the two employees violated the mediation agreement and submitted their resignation opinions for personal reasons.
From this case, we can raise a new question: can the employee's request for reinstatement of the employment relationship be supported when the employment relationship has been terminated?
Some enterprises may ask why employees don't take real compensation or compensation, and what is the purpose of continuing to restore labor relations?
In addition to the above-mentioned three employees, in fact, in the cases in the past two years, we have encountered some high-wage executives who are not satisfied with the amount of compensation or compensation proposed by the company, and their demands are more urgent to restore the labor relationship, mainly because the law stipulates that there is a double cap on the severance payment, that is, if the monthly salary of the executive exceeds 3 times the average salary of the previous year, it will be calculated according to 3 times and not more than 12 months, so for executives, It is clearly more beneficial to continue to restore labor relations and receive wages.
If an employee asks for reinstatement, will they be supported? Based on the cases we have handled, we conclude that the judiciary may consider the following factors:
1. Does the employee's original position exist?
In the past two years, the enterprise may remove the departments with poor efficiency in the enterprise through the form of layoffs, and the original positions of employees no longer exist, and there is an objective situation that requires actual performance;
2. Has someone replaced the position?
For example, if the enterprise has already recruited new employees, if the original workers continue to request the resumption of the performance of the contract, there are also objective circumstances;
3. Special circumstances. For example, the enterprise is ready to be dissolved, the original labor contract has expired, the employee has reached retirement age, and so on.