Brief facts of the case
On February 4, 1998, Xiao was engaged in quality inspection work in Group A, and on February 4, 2012, the company arranged for Xiao to continue to engage in quality inspection work in its subsidiary Industrial Company B. Xiao signed a labor contract with Industrial Company B for the period from February 4, 2012 to February 3, 2015, and the contract stipulated that Xiao's working years in Group A would be included in Industrial Company B. Because Industrial Company B failed to pay social insurance premiums to Xiao in accordance with the law, failed to pay labor remuneration in full and in a timely manner, failed to pay wages for unused annual leave, failed to pay high temperature allowances, and failed to pay overtime wages in full when Xiao worked 11 hours a day, Xiao was forced to propose to Industrial Company B to terminate the labor relationship on July 31, 2017, and the termination of the labor contract was on August 1, 2017. Xiao sued the court, requesting that Industrial Company B pay him RMB 54,400 as severance for the termination of the labor contract and that Group A should be jointly and severally liable for payment.
CourtsVerdict
Industrial Company B paid Xiao RMB 53,040 in economic compensation.
3. Lawyer analysis
The focus of the dispute between the parties in this case was the issue of whether Industrial Company B should pay severance from February 1998 to January 1, 2008, before the implementation of the Labor Contract Law.
1.Paragraph 3 of Article 97 of the Labor Contract Law stipulates: "If a labor contract existing on the effective date of this Law is dissolved or terminated after the effective date of this Law, the period of economic compensation for which economic compensation shall be paid in accordance with Article 46 of this Law shall be calculated from the effective date of this Law; Before the implementation of this Law, if the employer shall pay economic compensation to the employee in accordance with the relevant provisions at that time, it shall be implemented in accordance with the relevant provisions at that time." According to this provision, before the implementation of the Labor Contract Law, as long as there was a provision for the payment of severance at that time, the employer should pay severance payment.
2.Article 91 of the Labor Law of the People's Republic of China (hereinafter referred to as the "Labor Law") stipulates that: "If an employer infringes upon the legitimate rights and interests of a worker in any of the following circumstances, the labor administrative department shall order it to pay the employee's wages and remuneration and economic compensation, and may order the payment of compensation: 1 gram deduction or arrears of wages to the employee without reason; 2. Refusal to pay wages and remuneration for extended working hours; 3. The wages of the workers are paid below the local minimum wage standard; 4. After the termination of the labor contract, the employee is not given economic compensation in accordance with the provisions of this Law. According to this provision, if an employer defaults on the wages of an employee without reason, the employer shall pay severance to the employee.
3.On August 4, 1995, the Ministry of Labor issued the Opinions on Several Issues Concerning the Implementation of the Labor Law of the People's Republic of China (Lao Bu Fa No. 1995 No. 309), Article 40 of which stipulates that "if a worker terminates a labor contract in accordance with Paragraph 1 of Article 32 of the Labor Law, the employer may not pay severance but shall pay wages according to the actual number of days worked by the worker". Under any of the following circumstances, the employee may terminate the labor contract at any time by notifying the employer: during the probationary period. According to this article, as long as the employee does not terminate the contract during the probationary period, the employer shall pay severance to the employee.