Case In March 2009, Lao Zhang went to work in the company as usual. In the afternoon, the company's personnel manager suddenly came to his department and announced that the company had decided to lay off employees because the benefits were not good. He was told that Lao Zhang was on the layoff list and was limited to two hours to leave. At the same time, it promises that the company will pay economic compensation in the form of "N+2" higher than the legal standard. The so-called "n" is the economic compensation of one month's salary for every year of work. Lao Zhang has worked in this company for nearly five years, and his average salary in the first twelve months was about 5,000 yuan. According to this calculation, he can get economic compensation of 35 thousand yuan. But this sudden change still made Lao Zhang unacceptable.

State that Article 36 of the Labor Contract Law stipulates: "The employer and the employee may terminate the labor contract through consultation." If the company communicates with the relevant employees one by one, the two parties will terminate the labor contract on the basis of equality and voluntariness, which is not prohibited by law. Of course, employers should pay economic compensation to workers according to regulations. However, if the employer unilaterally terminates the labor contract, it must first meet the legal conditions. The Labor Contract Law stipulates that the statutory conditions for layoffs include substantive conditions and procedural conditions. Only when one of the substantive conditions and all the procedural conditions stipulated by law are met can layoffs be legal. If the company has no legal reasons or fails to reach an agreement with the employees, even if the labor contract is terminated after giving economic compensation, it also constitutes illegal termination of the labor contract. For the illegal termination of the labor contract, the Labor Contract Law clearly stipulates that if the laborer requests to continue to perform the labor contract, the employer shall continue to perform it; If the employee does not request to continue to perform the labor contract or the labor contract cannot be continued, the employer shall pay compensation to the employee according to the standard of twice the economic compensation, and the calculation period of compensation shall be calculated from the date of employment. The "Regulations on the Implementation of the Labor Contract Law" stipulates that if an employer dissolves or terminates a labor contract in violation of the provisions of the Labor Contract Law and pays compensation in accordance with Article 87 of the Labor Contract Law, it will no longer pay economic compensation.

This means that Lao Zhangcan chooses to restore labor relations or get compensation of 5000×5×2=50000 yuan.

2. Under what circumstances does the economic compensation need not be calculated by stages?

Case Xiao Li went to work in a factory on June 5438, 2007, with a monthly salary of 2000 yuan. In February 2009, due to major changes in objective conditions, the factory terminated the contract. Because of his working years 1 3 months, the factory paid him economic compensation 1 half-month salary of 3,000 yuan. However, Xiao Li believes that his economic compensation should be calculated in stages, that is, 65438+ 10/0 in June 2008/the half-month salary before the implementation of the Labor Contract Law plus 1 the half-month salary after the implementation is 3,000 yuan, totaling * * * 4,000 yuan. The two sides have differences from this.

It is said that economic compensation = base × years. The Labor Contract Law stipulates that the economic compensation shall be paid according to the number of years the laborer has worked in this unit and the standard of paying one month's salary for each full year. For more than six months but less than one year, it shall be counted as one year; If it is less than six months, economic compensation of half a month's salary shall be paid to the workers. If the monthly salary of workers is three times higher than the average monthly salary of local workers announced by the people's government of the municipality directly under the central government or the city divided into districts where the employer is located, the standard for paying economic compensation to workers is three times the average monthly salary of workers, and the longest period for paying economic compensation to workers shall not exceed 12 years. At the same time, it also stipulates that if a labor contract existing on the date of implementation of this Law is dissolved or terminated after the implementation of this Law, and economic compensation should be paid according to the provisions of Article 46 of this Law, the period of economic compensation shall be counted from the date of implementation of this Law; Before the implementation of this law, according to the relevant regulations at that time, if the employer should pay economic compensation to the workers, it shall be implemented in accordance with the relevant regulations at that time. However, it is not clear whether the payment standard of economic compensation should also be "calculated by stages" when the labor contract is terminated beyond the implementation period of the new law.

In the trial practice in Shanghai, it is clearly stipulated that the Labor Contract Law and the relevant laws and regulations implemented before June/Kloc-0, 2008 all stipulate that economic compensation should be paid. If the average monthly salary of workers is not higher than three times the average monthly salary of workers in this city in the previous year, the calculation base of economic compensation shall be determined according to the average monthly salary of workers in the twelve months before the dissolution or termination of the labor contract. If the Labor Contract Law stipulates that economic compensation should be paid, it does not belong to the situation that the total amount of economic compensation does not exceed the employee's twelve-month salary as stipulated in the preceding paragraph, and the period of economic compensation shall be calculated from the date of employment. "Relevant regulations at that time" mainly refers to several situations in which the total amount of economic compensation stipulated in the Detailed Rules of Shanghai Labor Contract "generally does not exceed the employee's 12 month salary income", including: 1. Dissolve by consensus; 2. Not competent for lifting work; 3. Forced labor by means of violence, threat or illegal restriction of personal freedom; 4. Failing to pay labor remuneration or provide working conditions as agreed. If there is an agreement, it shall be followed. However, the following situations do not belong to "generally not exceeding the wage income of workers 12 months": 1. Termination of medical treatment; 2. The objective situation has changed; 3. Economic layoffs; 4. Bankruptcy and dissolution of enterprises. This actually stipulates that when the average monthly wage of workers is not higher than three times the average monthly wage of workers in this city last year, and it does not belong to the situation that the total amount of economic compensation stipulated before does not exceed the 12-month wage income of workers, in this case, the base and fixed number of years of economic compensation do not need to be calculated in sections.

Xiao Li's monthly salary is less than three times of the average monthly salary of employees in the previous year, which does not belong to the limitation of payment period in the "relevant regulations at that time", so there is nothing wrong with the factory not calculating its economic compensation in stages. In fact, even if calculated in sections according to Xiao Li's statement, Xiao Li may not get the economic compensation of 4,000 yuan, because the calculation method of economic compensation is different before and after the implementation of the new law. According to the old regulations in Shanghai, there is no economic compensation for working less than half a year. Therefore, regardless of whether it is calculated in sections, Xiao Li's economic compensation is 3,000 yuan.

3. Under what circumstances should workers pay economic compensation for their voluntary resignation?

situation

The labor contract between Miss Zhang, who works in a real estate company, and the company will expire on June 20 10. However, Miss Zhang felt that the company's treatment was not satisfactory, saying that the company's calculation of overtime pay did not meet the relevant regulations, so she resigned from the company. The company agreed to Miss Zhang's application for resignation and settled her salary. Miss Zhang feels that she was forced to resign because the company did not pay the labor remuneration in full and on time, and the company should pay economic compensation.

statement

Article 37 of the Labor Contract Law: "A laborer may terminate the labor contract by giving a written notice to the employer 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probation period. " Generally speaking, the so-called voluntary resignation of workers refers to this situation and there is no need to pay economic compensation. However, if the employer fails to provide labor protection or working conditions as agreed in the labor contract, fails to pay labor remuneration in full and on time, or fails to pay social insurance premiums for the workers according to law, that is, if the workers resign according to Article 38 of the Labor Contract Law, the employer also needs to pay economic compensation. It should also be noted that the calculation standards of labor remuneration and social security payments are often complicated in actual operation. In the arbitration practice in Shanghai, if the employer fails to pay the labor remuneration in full and on time due to subjective malice, it can be used as the reason for the laborer to terminate the contract. However, due to objective reasons, the calculation standard is unclear and controversial, which leads to the employer's failure to pay the labor remuneration in full and on time or the social security fund, which cannot be used as the basis for the laborer to terminate the contract.

Because Miss Zhang was forced to resign because the employer failed to pay the labor remuneration in full and on time, she could not claim economic compensation.

4. Under what circumstances should the base and fixed number of years of economic compensation be calculated by stages?

situation

In June 1 98865438+1October1,Zhang entered the company, and his average monthly salary was 10000 yuan. In 2008, the average monthly salary of employees in Shanghai was three times that of 9876 yuan. On April 30, 2009, the unit terminated the labor contract with him because of layoffs. How should his financial compensation be calculated?

statement

The Labor Contract Law stipulates: "If the monthly salary of a laborer is three times higher than the average monthly salary of local employees announced by the people's government of the municipality directly under the central government where the employer is located, the standard for paying economic compensation to the laborer is three times the average monthly salary of the employee, and the maximum period for paying economic compensation to the laborer shall not exceed twelve years." In refereeing practice, Shanghai clearly stipulates that economic compensation will be calculated according to the previously stipulated standards from the date when the Labor Contract Law comes into effect. This actually stipulates that when the average monthly salary of employees is three times higher than the average monthly salary of employees in this city last year, the base and fixed number of years of economic compensation need to be calculated in stages. Before June 65438+1 October1in 2008, the economic compensation base was not limited by three times the average monthly salary of employees in this city in the previous year; After June 5438+1 October1in 2008, the economic compensation base shall be limited to three times the average monthly salary of employees in this city in the previous year. Before June 5438+1 October1,2008, if the total amount of economic compensation does not exceed the twelve-month wage income of workers, the period of economic compensation shall be limited to twelve years. If there is an agreement, the total amount of economic compensation that does not belong to the previous provisions shall not exceed the employee's twelve-month salary income. The period of economic compensation shall be calculated from the date of employment. Years of work after June 65438+1 October1in 2008 are included in the years of economic compensation.

Zhang terminated the labor contract because of layoffs, and his salary was more than three times the average monthly salary of employees in the previous year. Because it is not the case that the total amount of economic compensation does not exceed the employee's twelve-month salary, the economic compensation is 10000 yuan *20 months +9876 yuan * 1.5 months = 2 1.48438+04. However, if he terminates the labor contract not because of layoffs and other reasons, but because of consensus and other reasons, that is to say, the total economic compensation does not exceed the employee's twelve-month salary, and the economic compensation is 10000 yuan * 12 months +9876 * 1.5 months =13.30008888.