Illegal move guard, how does the unit compensate?

2022-05-08 0 By

Recently, the media reported that a company executive, in the same salary, was transferred to the company’s front desk post, then proposed to terminate the labor contract, and advocated the company to pay compensation, and was eventually ruled by the court by the company to pay economic compensation for the termination of the labor contract.How to adjust the legal health company to avoid labor disputes, economic compensation?According to the Understanding of Labor Law, Labor Contract Law and judicial rules, the employer’s unilateral post transfer to the laborer should meet the following conditions and be reasonable: First, the post transfer is based on the production and operation needs of the enterprise or due to the laborer’s personal ability, work attitude and other factors;Second, the wage level of the workers after the post transfer is basically equivalent to the original post;Third, the transfer is not insulting or punitive;Fourth, the post transfer will not increase the labor cost of workers;Fifth, we must not violate the core socialist values.How to change labor contract according to law?The operators and managers of the company shall be aware of the law and its application, and solve labor and employment problems within the legal framework.In the third chapter of China’s Labor Contract Law, there are clear provisions on the performance and modification of labor contracts.If the company’s position adjustment violates the law, the employee can mail a notice to the company to claim termination of the labor contract and claim economic compensation.Accordingly, unit of choose and employ persons wants to learn law, usage, lawfully change labor contract, avoid unnecessary economic loss.Economic compensation company illegal transfer of post, malicious transfer of post, the employee to remove the labor contract is to claim economic compensation, or claim compensation?Generally, the salary of the company is unchanged, while the work content and working conditions are changed, or the post and salary are changed together.If the company adjust duty behavior form in accordance with the law, not according to the labor contract to provide labor protection or working conditions, according to “labor contract law” stipulated in article 38, unit of choose and employ persons in any of the following circumstances, the laborer may terminate the labor contract: (a) is not in accordance with the labor contract to provide labor protection or work conditions;The employing unit shall pay economic compensation to the laborer under any of the following circumstances :(1) the laborer dissolves his labor contract in accordance with the provisions of article 38 of this law.Obviously, in this case, the employee should claim economic compensation, not compensation.Under what circumstances can an employee claim damages from the company?Article 48 of China’s Labor Contract Law stipulates that if an employer dissolves or terminates a labor contract in violation of the provisions of this Law and the employee requests to continue to perform the labor contract, the employer shall continue to perform;Where the laborer does not request to continue to perform the labor contract or the labor contract cannot continue to be performed, the employing unit shall pay compensation in accordance with the provisions of Article 87 of this Law.Article 87 of this Law stipulates that if an employing unit dissolves or terminates a labor contract in violation of this law, it shall pay compensation to the laborer twice the economic compensation standard stipulated in Article 47 of this Law.Article 47 of China’s “Labor Contract Law” stipulates that economic compensation shall be paid to the laborer according to the standard of one month’s salary for each full year that the laborer has worked in the unit.If the period is more than six months but less than one year, it shall be counted as one year;For less than six months, economic compensation of half a month’s salary shall be paid to the laborer.Where the monthly wage of a laborer is three times higher than the average monthly wage of the staff and workers of the previous year published by the people’s government of the municipality directly under the Central Government or the city divided into districts where the employing unit is located, the standard for economic compensation shall be three times the average monthly wage of the staff and workers, and the maximum number of years for economic compensation shall not exceed 12 years.The term “monthly wage” as mentioned in this article refers to the average wage of a laborer in the 12 months prior to the rescission or termination of the labor contract.Labor arbitration special reminder: in many domestic labor arbitration commission, the basic people’s court, for the laborer to terminate the labor contract to the company claim economic compensation or compensation, the legal “two gold” between the two can only choose one;If the workers claim wrong, confused the “two gold” application conditions, most of the arbitration commission or the court is the need to initiate another labor arbitration procedures, is bound to cause certain losses.However, to avoid litigation tired, guangdong provincial high court, guangdong province labor and personnel dispute arbitration commission jointly issued the “on labor and personnel dispute arbitration and litigation cohesion several opinions (guangdong, the court is sent [2018] no. 2) stipulated in article 12, when the laborer applies for arbitration or prosecution request the compensation to remove illegal or unlawful termination of labor contract,However, if the arbitration institution or the people’s court considers that the laborer should be supported to rescind or terminate the labor contract after the trial, it may directly adjudicate that the employing unit should pay the laborer economic compensation.The economic compensation for the dissolution or termination of the labor contract requested by the laborer when applying for arbitration or bringing a lawsuit, but if the arbitration institution or the people’s court considers that the compensation for the illegal dissolution or termination of the labor contract should be supported after the trial, it may be supported within the amount claimed by the laborer.This is a good policy for the benefit of the country and the people. It is hoped that similar regulations will be implemented across the country.