The Compensation Period Can Only Start From New Units?

It has been more than 10 years since I worked in a company.

A few years ago, the superior authorities decided to merge several affiliated subsidiaries of our company and set up a limited liability company.

Because of my age, I did not choose to buy out at the time, that is, I took away the contract from the economic compensation.

Since the new business work, has also been 5 years, originally thought can work to retire, did not think of the recent change, my department has been revoked, the enterprise is willing to dissolve the contract and pay economic compensation.

Some comrades are willing to leave on the higher part of compensation, and so do I.

But there is a dispute over the compensation period, because the unit will only admit my 5 years' working experience after the new unit. Is that right?

First, the dissolution of contract.

Generally speaking, the contract can be terminated as long as the agreement is reached on an equal footing.

If the negotiation is inconsistent, including the dissatisfaction of the staff on the compensation share, the contract may be required to continue. If there is a statutory situation, the unit may unilaterally rescission the contract.

In accordance with the fortieth clause and third paragraph of the labor contract law, the objective situation on which the labor contract is concluded has undergone significant changes, resulting in the failure of the labor contract to be fulfilled. After negotiations between the employer and the laborer, no agreement has been reached on the content of the labor contract.

The employer can terminate the labor contract in writing thirty days ahead of time, or pay the employee one month's wages.

Second, about the number of years of compensation.

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The tenth provision of the Implementing Regulations stipulates that laborers are not assigned to the new employer units for their own reasons.

The working life of the original employer shall be calculated as the working life of the new employer.

If the original employer has paid the economic compensation to the laborer, the new employer will no longer calculate the working life of the laborer in the original employing unit when he or she terminates the labor contract in accordance with the law and calculates the working life of paying the economic compensation.

The general office of the former Ministry of labor, "the instructions for the termination or dissolution of the labor contract for the calculation of economic compensation", clearly stated that the work hours could be counted as "working hours in the unit" as a result of the merger, merger, joint venture, alteration of the nature of the unit, and change of name by the legal person.

The Supreme Court's interpretation of several issues concerning the application of the law in labor dispute cases (four) also stipulates that the laborers are not assigned to the new employer units for their own reasons, and the original employer did not pay the financial compensation.

When a worker proposes to terminate or terminate a labor contract, the people's court shall support the worker's request to combine the working life of the original employer to the working life of the new employer when calculating the working life of paying the economic compensation or compensation.

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According to Ms. Liu, she worked in an enterprise near her home 5 years ago. At that time, the company signed a 2 year labor contract with her, and the work place in the contract was "Shanghai".

At that time, the company also promised that without special circumstances, the contract will expire with her.

Although she was in three shifts, she had to work on the morning shift and night shift, and sometimes she had to work overtime. But fortunately, she was close to home, and her bicycle was only more than 10 minutes away.

Who knows, before the Spring Festival holiday this year, she heard the news that the company was moving.

Sure enough, after the Spring Festival, the department managers met with them, saying that the company would move, and all the staff moved with the company, and the jobs, wages and so on remained unchanged.

She felt that although she was still in the urban area after the relocation of the company, she had a long way to go to work. The one-way trip took nearly an hour. If she went to work at 5 o'clock, she would go home late at night.

Obviously, she could not take care of her family as she used to do, which made her very embarrassed. After all, her husband worked in the field, and the young and sick parents depended on her to take care of them alone.

It seems that only to quit, for this reason, she asked the Department Manager to talk about her difficulties, and hoped that the company could relieve her labor contract and give her economic compensation.

The manager sympathized and agreed to reflect her situation. But two days later, the manager told her that the company did not agree to cancel the contract. If she did not, she could only resign.

The manager also wanted her to understand the company's difficulties, because if she agreed to do so, other employees would follow suit, so people would be lost.

However, the manager revealed that the company would consider the problem of the commuter car, and now hopes that she will overcome it for the time being.

Luo Qiang, director of Shanghai red three rights law firm, said that the case is typical because the relocation of enterprises is increasing, some of them are located in different districts of the city, others are moving to the more remote suburbs, and more still moving to the Jiangsu and Zhejiang provinces bordering the city, which really brings inconvenience to the performance of labor contracts.

Moreover, how to deal with this problem concerns the maintenance of the rights and interests of employees and the stability of production and operation of enterprises.

As for Ms. Liu's case, the relocation of the company did bring inconvenience to her, but this did not cause the company to terminate the contract with her.

First of all, although Ms. Liu's labor contract has agreed that the working place is Shanghai, the company is only moving across the region. The address is still in the city, and in the urban area, so it can not be regarded as a "contract change". It must be "negotiated" with myself, otherwise it will be a breach of contract.

Secondly, although the labor contract law stipulates that a major change in the objective situation based on the conclusion of a labor contract results in the failure of the labor contract to be fulfilled. After the operation is made according to the law, the labor contract can be rescind.

However, there is no significant change at present. Only the change of location brings about the increase of working time. Without consensus, employers should not give employees financial compensation.

Once again, the company expressed willingness to increase the number of pport vehicles, so Miss Liu temporarily overcome it is also feasible.

We must dissolve the contract, and enterprises must also consider the cost and the continuity of production and operation.

Finally, if the place of work specified in the original contract is "this area" or the relocation of enterprises in different cities, this should be considered as "a major change in the objective situation resulting in the failure of the labor contract to be fulfilled". The workers may require the enterprise to terminate the contract and pay the economic compensation.

Luo stressed that at present, some enterprises should pay special attention to the payment of economic compensation through relocation.

Because these enterprises have moved far away, some jobs have been demolished, and no dormitories or shuttle buses have been provided. The roads are far away. Sometimes there are no buses in the evening. They should be allowed to choose or walk or stay, but these units still refuse to make compensation because of the fact that they continue to fulfil the contract, forcing them to leave their own homes, so that they can not pay a penny of compensation.

In a word, Luo said that the relocation of workers should be understood, and the employees are in fact difficult. Enterprises can not turn a blind eye to it, so that both sides can find a meeting point, and can also promote harmonious and stable labor relations.