The saying of "Xinjiang Law" 丨 How should the army defend their rights when they encounter labor disputes?

This issue has been launched in the series of "Xinjiang Law".

"What should I do if the company is dismissed by the company?" Today we'll find out.

Case link

Warrior Xiao Wang's wife Xiao Shi came to the station with the army. In early 2022, Xiaoshi found the job of education and training lecturers through the recruitment website. Salary is 5,000 yuan. After the probation period, Xiaoshi continued to work in the company. Four months later, the company was unilaterally dismissed Xiaoshi due to the rectification of the education industry. During this period, the company also owed Xiaoshi's salary for 2 months on the grounds of operating difficulties. Xiaoshi worked for 5 months (including trial period).

Interpretation

I. The company has not signed a labor contract with Xiaoshi. Does the two parties form a labor relationship?

Although Xiao Shi has not signed a labor contract with the company, it has formed an employment relationship with the company and is managed by the rules and regulations of the unit.

2. What vouchers do Xiaoshi need to provide to determine that there is a labor relationship between the two parties?

Xiaoshi can collect wage payment vouchers or records, and pay various social insurance premium records; the work permit issued by the unit can prove identity; Workers' testimony; dubbing and other office system punch -in record materials; materials about telecommunications and WeChat chat records about labor relationships that can prove the factual labor relationship. These can be used as evidence materials to prove that there is a labor relationship between the two parties.

3. What economic compensation or compensation can Xiaoshi claim to the company?

In addition to 2 months of salary, Xiaoshi can also claim to the unit that the difference between double wages per month during the period of not signing a written labor contract. According to the "Labor Contract Law", after the Xiaishi trial period is qualified, the employer did not sign a written labor contract with it, and the unit shall pay the punitive compensation of 2 times the salary of the unsigned labor contract. According to the case, Xiaoshi can claim to the unit for 4 months that have not signed a two -fold wage difference in written labor contracts, that is, 5000 × 4 = 20,000 yuan.

Xiaoshi can also claim economic compensation of illegal termination to the unit. The employer unilaterally lifts the labor relationship, and the standard of paying compensation to the workers should be paid to the workers in accordance with two times the standard of the workers' work "for the economic compensation for half a month of salary for half a month" standard, that is, 5000 × (1/1/ 2) × 2 = 5000 yuan.

Fourth, what ways can workers similar to disputes defend their rights through?

When the workers find that their labor rights and interests are infringed, the first method is to complain to the labor supervisory brigade corresponding to the employer where the employer is located, requiring to find out the illegal act of employers. The time limit for the complaint is within 2 years from the date of violation of labor security laws, laws and regulations. The second method is to apply for labor arbitration from the labor department where the unit is located or the place of labor. The timeliness of labor arbitration is generally 1 year, and the time limit is interrupted. If the labor relationship is controversial due to arrears of labor remuneration, it is required to be proposed within one year from the date of termination of the labor relationship.

Law link

"Civil Code"

Article 577 If one party does not fulfill its contractual obligations or does not meet the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures, or compensation loss.

"Labour Contract Law of the People's Republic of China"

Article 7 The employer will establish a labor relationship with the workers from the date of use. Employers shall establish a roster for employee.

Article 10 Establishing a labor relationship shall establish a written labor contract. If a labor relationship has been established and a written labor contract has not been established at the same time, a written labor contract shall be established within one month from the date of employment.

Article 47 Economic compensation is paid to workers in accordance with the standards of workers working in their own units and pay a monthly salary every year. If it is less than one year or not for one year, it is calculated at one year; if it is less than six months, the economic compensation of the workers pays half a month of salary. Article 82 If the employer does not make a written labor contract with a laborer for more than a month from the date of self -employment of the employer, it shall pay the wages of the workers twice the monthly monthly salary.

Article 87 If the employer violates the termination or terminate the labor contract in violation of the provisions of this Law, it shall pay the workers in accordance with the two times the economic compensation standards stipulated in Article 47 of this Law.

"Labor Security Supervision Regulations"

Article 20 Acts that violate labor security laws, regulations or rules have not been discovered by the labor security administrative department or reported or complained within 2 years, and the labor security department will no longer investigate and punish.

The period stipulated in the preceding paragraph is calculated from the date of violation of labor security laws, regulations or rules; if the behavior of violations of labor security laws, regulations or rules is continuous or continued, it is calculated from the end of the end.

"The People's Republic of China Labor Dispute Controversy Arbitration and Arbitration Law"

Article 27 The timeliness of labor dispute application for arbitration is one year. During the arbitral limitation period, the party knows or should be calculated from the date of the infringement of its rights.

The time limit for arbitration stipulated in the preceding paragraph is interrupted because the parties claim their rights, or request the right to relieve the rights from the relevant departments, or interrupt the obligations of the other party. From the time of interruption, the arbitral limitation period is re -calculated.

乐 Organize 丨 Yin Hongle

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