In late January this year, Ms. Li, a citizen, found "Shanghai Taipan Housekeeping Service*** hereinafter referred to as "Taipan Housekeeping") to urgently find a live-in aunt, and officially signed a contract on January 30. Who knows, the aunt who worked hard during the trial work quit a few days after signing the contract. However, when Ms. Li approached "Taipan Housekeeping" again and wanted to refund the fee, the two parties had a dispute over how much intermediary fee they wanted to refund. The aunt "fired" the employer, can the intermediary fee paid by the employer be refunded? How much is the basis for the refund?
*: The live-in aunt resigned a few days after signing the contract, how to refund the intermediary fee?
At the end of 2023, two live-in aunts in Ms. Li's family plan to leave their jobs one after another. Seeing that the Chinese New Year was approaching, Ms. Li found "Taipan Housekeeping" and proposed to find a live-in aunt.
I explained my needs in detail, and the 'teacher Zhou Zhou', who was in charge of connecting with me, had a positive attitude and helped me recommend a few aunts. Ms. Li said that after comparison, she finally chose an Aunt Liu to try out the work and paid a "trial deposit" of 2,000 yuan.
The "trial deposit" of 2,000 yuan paid "According to the regulations of the housekeeping company, the so-called trial work is to let the aunt try it for a few days, and if both parties think it is suitable, they can sign the contract." Ms. Li said that during the trial work, Aunt Liu worked very hard, and her family was really in urgent need of an aunt, so on January 30, Ms. Li and Aunt Liu formally signed the "Taipan Housekeeping Employment Introduction (Intermediary) Housekeeping Service Contract" (hereinafter referred to as the "Service Contract") through the "Taipan Housekeeping", agreeing to pay Aunt Liu 11,500 yuan per month, and at the same time, it is also necessary to pay 11,800 yuan for intermediary services and other expenses of "Taipan Housekeeping", deducting the 2,000 yuan deposit that has been paid before. Ms. Li paid another 9,800 yuan to the "Taipan Housekeeping".
The second payment of 9,800 yuan to "Taipan Housekeeping" The above contract shows: "The service period is from January 24, 2024 to January 23, 2025, but the specific service start and end dates are calculated based on the actual home service time." ”
originally thought that with Aunt Liu's joining, the affairs of the family could finally run normally again. However, a few days after the contract was signed, on the evening of February 3, Aunt Liu proposed to resign. Ms. Li was unable to stay, and on the morning of February 4, Aunt Liu left.
Ms. Li carefully reviewed the Service Contract and found the following agreement: "If Party B (referring to the 'live-in aunt') cannot continue to engage in the service work agreed in the contract with Party A (referring to the 'employer'), it shall notify both parties A and C (referring to the 'intermediary') at least seven days in advance. If Party B leaves the household without authorization, Party A has the right to deduct one week's salary of Party B as compensation for vacant positions. ”
The relevant content of the contract "At that time, my aunt insisted on leaving and asked me for my salary, so I could only settle her wages and let her leave." Ms. Li believes that the housekeeping aunt, as Party B, did not inform 7 days in advance, which is already a breach of contract. After she gave feedback to "Teacher Zhou Zhou", the "Teacher Zhou Zhou", who said that she could find a new aunt for her as a replacement.
After Aunt Liu left, 'Taipan Housekeeping' has not been able to find an aunt to replace her. Ms. Li said that on February 15, she felt that she couldn't wait any longer, so she contacted "Teacher Zhou Zhou" to hope for a refund. The chat records show that Ms. Li said on the same day that she could wait for another 5 days, and if she still didn't find a suitable one within 5 days, she would refund her first.
Five days have passed, and they still haven't been able to find a suitable replacement for their aunt. Ms. Li said that on February 21, she found "Taipan Housekeeping", hoping to refund the order, but the negotiation reached an impasse again, and she could only call the citizens to complain in a fit of anger.
On the morning of February 22nd, the *** of 'Mr. Zhou Zhou' sent me a message, saying that 'Mr. Zhou Zhou' had resigned, and now it is a store manager of Zhou who took this *** Ms. Li said that seeing that the other party had changed people, she once again reiterated her reason for refund, "But at this time, the other party said that I was too demanding, and told me that they had paid the operating costs, and even if they refunded, they could only refund 40%, which made me unacceptable." ”
So, what was the basis for agreeing to a 40% refund in the previous negotiations?
On February 27, the reporter came to the "Shanghai Taipan Housekeeping Service" located in Block C of the Everbright Convention and Exhibition Center in Xuhui District to inquire about the situation, and the store manager Zhou said that the superior leaders would contact the reporter after agreeing to be interviewed.
At the same time, the reporter also dialed the 400** of "Taipan Housekeeping" and received the same reply. However, as of press time, the reporter has not received any feedback from the "Taipan housekeeping" staff.
As a result, the reporter had no choice but to report the above situation to the Xuhui District Market Supervision and Administration Bureau and the Xuhui District Commission of Commerce. After the Xuhui District Market Supervision and Administration Bureau recorded the problem, it said that it would verify with the relevant departments, but as of press time, the reporter has not received a callback.
A staff member of the Xuhui District Commission of Commerce replied to reporters that the functional department had a preliminary understanding of the situation from the Taipan Housekeeping for the first time, and according to the information revealed by the person in charge of the Taipan Housekeeping in Shanghai, there seemed to be a certain discrepancy with Ms. Li's statement.
According to the Taipan housekeeping revealed to the Xuhui District Commission of Commerce, before Aunt Liu, there was also an "Aunt Ling" who also went to Ms. Li's house to try work, and after the probationary period, Ms. Li was not satisfied, so Taipan Housekeeping introduced Aunt Liu. The two aunts combined served for more than ten days. The live-in aunt said that Ms. Li's family had high requirements for work, and there were special requirements such as requiring the aunt to be vegetarian, and Aunt Liu couldn't bear it before leaving. After Aunt Liu left, Ms. Li privately asked Aunt Ling to come to her door.
As for the basis for the 40% refund, Taipan Housekeeping proposed that according to the "Service Contract": "Once the domestic intermediary contract is signed, Party A (referring to the 'employer') enjoys a three-day cooling-off period, and Party B (referring to the 'live-in aunt') does not provide services during the cooling-off period, Party A can apply for a 100% refund." During the cooling-off period and before the end of the first month of service, if Party B has already entered the household, and Party A proposes to replace the domestic service staff Party C (referring to the 'intermediary') fails to provide the corresponding candidate in time, Party A has the right to propose a refund, deducting a one-time intermediary matching service fee according to 60% of the aunt's first month's salary, and the remaining amount can be refunded to Party A. ”
The relevant content of the contract also revealed that because it did spend labor costs, in principle, it could only refund 40% of the cost, but out of the sincerity of the negotiation, it was also willing to fight with the head office to see if there was a better plan. However, because Ms. Li had previously posted unverified and unfavorable remarks on social **, which caused reputational damage to the company, she hoped that Ms. Li would withdraw her untrue remarks on social platforms.
Could it be that Taipan Housekeeping has recommended a replacement aunt to Ms. Li?
In fact, according to the chat records of the two parties, the reporter found that in the process of looking for a long-term live-in aunt, Ms. Li also proposed to "Teacher Zhou Zhou" that she also needed a short-term aunt with a baby. On February 2, "Teacher Zhou Zhou" took the initiative to find Ms. Li and said that she had not found a suitable hourly worker recently, and asked if she would accept "Aunt Ling" who had come to try work as a short-term substitute, and the two parties agreed on WeChat that from February 16 to March, "Aunt Ling" would go to Ms. Li's house for short-term substitute work.
This 'Aunt Ling' did come to our house to work for a while, and now she has paid the money and left. Ms. Li told reporters that after "Aunt Ling" arrived at the post, neither the aunt nor "Teacher Zhou Zhou" proposed to sign a formal contract, until the two parties had a dispute over the refund, and the store manager thought that she had recommended a replacement aunt to Ms. Li. ”
The trial period is a two-way choice process, if you feel uncomfortable, the aunt can not sign a contract with us, since the contract has been signed, the agreement should be fulfilled, the aunt left suddenly, causing us a lot of trouble, how to blame us? Ms. Li believes that since the aunt left the company on her own, it does not belong to the situation where "Party A (referring to the 'employer') proposes to replace the domestic service staff", so she still hopes to refund the agency fee in full.
We will also further investigate and verify the actual situation. The staff of the Xuhui District Commission of Commerce said.
Ms. Li said that if the negotiations were unsuccessful, she would resolve the matter through legal means.
How can this situation be avoided if the domestic helper leaves early, leaving the employer and the domestic service company to have a dispute? Should the intermediary fee be refunded? In this regard, the reporter consulted Jiang Zhenwei, a senior partner of Shanghai Xinchang Law Firm.
Reporter:The contract signed between Ms. Li and "Taipan Housekeeping" clearly stipulates the situation of "the employer fires the aunt", so in the case of "aunt resigns early", should the fee be refunded according to the contract?
Jiang Zhenwei:The contract did not stipulate the refund liability of the housekeeping company in the event of the aunt's early resignation. In the existing contract, for the domestic service company, during the contract period, if the aunt is unable to provide services as agreed in the agreement, or the employer is unable to accept the services provided by the aunt, the domestic service company shall replace the domestic service personnel according to the employer's requirements. For the aunt, if she leaves the household without authorization, the employer has the right to deduct one week's salary from the aunt as compensation for the vacancy.
Therefore, from the perspective of contractual agreement and fair responsibility, I believe that in the case of an aunt's very short working hours and early resignation, the domestic service company should replace the domestic service staff for the employer free of charge. If a suitable candidate cannot be found, the intermediary fee shall be refunded as appropriate, taking into account factors such as the length of service of the aunt, the actual loss of the housekeeping company, and whether the employer is at fault.
Taipan Housekeeping" storeReporter:The contract was signed on January 30, but the service time period was included from the "trial work", which showed: "From January 24, 2024 to January 23, 2025, but the specific service start and end dates are calculated based on the actual home service time. In this case, suppose that the cooling-off period and the concept of "first month of service" are to be calculated, starting from January 24 or January 30?
Jiang Zhenwei:The dates from these two time nodes are different.
Once the contract is signed, there is a cooling-off period of three days. In other words, the cooling-off period starts from the date of signing the contract, so the cooling-off period should start on January 30.
However, the "first month of service" is not marked by the date of signing the contract, but from the day when the actual service is provided, that is, the first month of service, is calculated from January 24.
Reporter:The housekeeping company believes that it has introduced a number of aunts to Ms. Li, and the aunts all try to work before signing the contract, and the housekeeping company also has costs as an intermediary to find an aunt to try out the work. How should the rights and interests of the three parties within the "trial period" be protected?
Jiang Zhenwei:There needs to be more detailed agreements in the contract on "resignation during the trial period", such as what behaviors the aunt has, the employer can dismiss the aunt without responsibility, and how to deal with the employer's dismissal of the aunt without reason and the aunt's voluntary resignationOnly when the responsible party for the aunt's dismissal and the corresponding disposal method are clarified, it is possible to achieve a more reasonable protection of the rights of all parties.