How to compensate for the losses caused by the delay in handling the exit procedures,

How to compensate for the losses caused by the delay in handling the exit procedures

[Case introduction] A company in Shanghai recruited a sales supervisor. One of the employment conditions was to honestly explain the relevant situation. Mr. Wang went to apply. When filling in the job resume of the candidate made by the company, Mr. Wang filled in his work experience as a sales supervisor in an enterprise. The company is satisfied with Mr. Wang's work experience, that is, it signed a three-year labor contract with Mr. Wang, of which the probation period is six months. During the probation period, the company found that Mr. Wang's sales performance was always poor, and the sales plan was difficult to complete, so it doubted Mr. Wang's work experience. After investigation, the company found that Mr. Wang had never held the position of sales supervisor although he was engaged in sales work in an enterprise, so it terminated Mr. Wang's labor contract on the ground that Mr. Wang submitted false work experience when applying for a job.

After the termination of the contract, the company requires Mr. Wang to hand over the sales documents, customer list and other materials immediately, otherwise, he will not go through the exit procedures; Mr. Wang said that there was no work materials to hand over and asked the company to immediately handle the exit procedures, which led to a stalemate between the two parties. Since then, although the two sides have had many contacts, no results have been achieved. Half a year later, the company prepared to handle the exit formalities for Mr. Wang, but found that Mr. Wang's labor manual had never been handed over to the company's personnel department, and the recruitment registration and filing formalities had not been handled, so the company informed Mr. Wang to hand over the labor manual to the company as soon as possible to assist in handling the recruitment and exit formalities. Mr. Wang thought that the company's long absence from work had caused him great losses, but the company did not mention the loss, so he refused to go to the company to assist in handling the exit procedures. Since then, the two sides have entered a stalemate again. Another half a year later, Mr. Wang applied to the Labor Dispute Arbitration Commission for arbitration and asked the company to compensate for the economic losses of unemployment since the termination of the contract.

Reasons of both parties:

Mr. Wang believes that the company should be liable for compensation if it is unable to obtain employment due to the lack of basis for terminating the contract on the basis of previous work experience and the failure to timely handle the termination procedures after the termination of the contract.

The company believes that the company can terminate the contract if the false work experience submitted by Mr. Wang does not meet the employment conditions. After the termination of the contract, Mr. Wang refuses to hand over the work and refuse to assist in handling the exit procedures. If there is any loss, he should be responsible for it.

[Case analysis] Article 25 of the Labor Law of the People's Republic of China stipulates that if a worker is proved to be unqualified for employment during the probation period, the employer may terminate the labor contract. According to the provisions of this article, if the parties agree on the probation period in the labor contract according to law, the employer can immediately terminate the labor contract if it can provide evidence to prove that the worker does not meet the employment conditions during the probation period.

Then, can submitting false work experience to the employer be regarded as a situation that does not meet the employment conditions?

Article 8 of the Regulations of Shanghai Municipality on Labor Contracts stipulates: "Before concluding a labor contract, a worker has the right to know the relevant rules and regulations, working conditions, labor remuneration, etc. of the employer, and the employer shall truthfully explain them;"; When employing workers, employers have the right to know the health status, knowledge and skills, work experience and other information of workers, and workers should truthfully explain ". According to the provisions of this article, the parties to labor relations have the right to know each other and the obligation to inform each other before concluding labor contracts, which is the integrity rules set by laws and regulations for the parties to conclude labor contracts. Therefore, if the employer sets the conditions of good faith in the employment conditions and can prove that the worker violates the conditions of good faith during the probation period, it can regard this as a situation that does not meet the employment conditions according to the regulations.

After the employer terminates the labor relationship according to law, it shall go through the procedures of exit registration and filing according to regulations. Article 12 of the Administrative Measures of Shanghai Municipality on the Recruitment and Dismissal of Work Units stipulates that "after the termination or dissolution of the labor relationship between the employer and the full-time employees, the registration and filing procedures for the dismissal shall be completed within 7 days". In this article, there is no exception that the registration and filing procedures for the dismissal can be delayed.

Then, how to determine the liability for damages when there is a dispute over delayed dismissal?

The Notice on Several Issues Concerning the Implementation of the Regulations of Shanghai Municipality on Labor Contracts (II) stipulates that: "(I) The labor contract relationship has been dissolved or terminated, and the employer fails to comply with the Regulations If it is required to issue a valid certificate for the dissolution or termination of the labor contract relationship or fail to go through the exit formalities in time, which affects the workers to go through the unemployment registration formalities and causes losses, the employer shall compensate in accordance with the relevant provisions on unemployment insurance benefits; If other actual losses are caused to the worker, the employer shall compensate for other actual losses according to the worker's request, but no longer bear the liability for compensation of statutory unemployment insurance benefits. （2） If the employer fails to go through the exit formalities in time due to the employee's reason, the loss shall be borne by the employee ". According to the above provisions, the losses caused to the employee by the employer's failure to issue valid certificates or go through the exit formalities in time after the dissolution or termination of the labor contract are divided into two categories: one is the losses that affect the unemployment registration procedures, and the other is the actual losses. The above two kinds of losses shall be shared according to the principle of fault liability, that is, if the employer fails to issue valid certificates as required or fails to go through the exit formalities in time, it shall compensate the loss of unemployment insurance benefits or other actual losses of workers; If the employer fails to go through the exit formalities in time due to the worker, the loss shall be borne by the worker himself.

[Result of case] Mr. Wang submitted false work experience to the company for employment. The company confirmed that Mr. Wang did not meet the employment conditions through investigation during the probation period, and there was no improper place for the company to terminate the labor contract accordingly; The company shall handle the exit formalities within 7 days after terminating the labor relationship according to the law, but the company does not handle the exit formalities for the reason that Mr. Wang has not handed over the work materials, which is lack of legal basis, and shall bear the liability for compensation for Mr. Wang's losses during the period of not handling the exit formalities; The company is prepared to handle the exit formalities for Mr. Wang and notify Mr. Wang to submit the labor manual for assistance. Mr. Wang refused to go to the company to assist in handling the exit formalities on the ground that the company did not mention the loss of exit. This is the case that the company failed to handle the exit formalities in time due to his own reasons. The losses caused after the company's notification should be borne by Mr. Wang according to the regulations.

[Relevant regulations] Article 25 of the Labor Law of the People's Republic of China stipulates that if a worker is proved to be unqualified for employment during the probation period, the employer may terminate the labor contract.

Article 8 of the Regulations of Shanghai Municipality on Labor Contracts stipulates: "Before concluding a labor contract, a worker has the right to know the relevant rules and regulations, working conditions, labor remuneration, etc. of the employer, and the employer shall truthfully explain them;"; When employing workers, the employer has the right to know about the health status, knowledge, skills and work experience of the workers, and the workers should truthfully explain“

Article 12 of the Measures of Shanghai Municipality on the Administration of Recruitment and Demobilization of Units stipulates that "after the employer terminates or terminates the labor relationship with the full-time employees, it shall complete the procedures for registration and filing of demobilization within 7 days"

The Notice on Several Issues of the Regulations of Shanghai Municipality on Labor Contracts (II) "stipulates:" (I) The labor contract relationship has been dissolved or terminated, and the employer has not issued a valid certificate for the dissolution or termination of the labor contract relationship in accordance with the Regulations, or has not handled the termination procedures in a timely manner, which affects the employee's handling of unemployment registration procedures and causes losses, The employing unit shall make compensation in accordance with the relevant provisions on unemployment insurance compensation; If other actual losses are caused to the worker, the employer shall compensate for other actual losses according to the worker's request, but no longer bear the liability for compensation of statutory unemployment insurance benefits. （2） If the employer fails to go through the exit formalities in time due to the employee's reason, the loss shall be borne by the employee ". According to the above provisions, the losses caused to the employee by the employer's failure to issue valid certificates or go through the exit formalities in time after the dissolution or termination of the labor contract are divided into two categories: one is the losses that affect the unemployment registration procedures, and the other is the actual losses.

A company in Shanghai is recruiting a sales director. One of the employment conditions is to be honest about the relevant situation. Mr. Wang went to apply. When filling in the job resume of the candidate made by the company, Mr. Wang filled in his work experience as a sales director in an enterprise. The company is satisfied with Mr. Wang's work experience, that is, it signed a three-year labor contract with Mr. Wang, of which the probation period is six months. During the probation period, the company found that Mr. Wang's sales performance was always poor, and the sales plan was difficult to complete, so it doubted Mr. Wang's work experience. After investigation, the company found that Mr. Wang had never held the position of sales supervisor although he was engaged in sales work in an enterprise, so it terminated Mr. Wang's labor contract on the ground that Mr. Wang submitted false work experience when applying for a job.

After the termination of the contract, the company requires Mr. Wang to hand over the sales documents, customer list and other materials immediately, otherwise, he will not go through the exit procedures; Mr. Wang said that there was no work materials to hand over and asked the company to immediately handle the exit procedures, which led to a stalemate between the two parties. Since then, although the two sides have had many contacts, no results have been achieved. Half a year later, the company prepared to handle the exit formalities for Mr. Wang, but found that Mr. Wang's labor manual had never been handed over to the company's personnel department, and the recruitment registration and filing formalities had not been handled, so the company informed Mr. Wang to hand over the labor manual to the company as soon as possible to assist in handling the recruitment and exit formalities. Mr. Wang thought that the company's long absence from work had caused him great losses, but the company did not mention the loss, so he refused to go to the company to assist in handling the exit procedures. Since then, the two sides have entered a stalemate again. Another half a year later, Mr. Wang applied to the Labor Dispute Arbitration Commission for arbitration and asked the company to compensate for the economic losses of unemployment since the termination of the contract.

Reasons of both parties:

Mr. Wang believes that the company should be liable for compensation if it is unable to obtain employment due to the lack of basis for terminating the contract on the basis of previous work experience and the failure to timely handle the termination procedures after the termination of the contract.

The company believes that the company can terminate the contract if the false work experience submitted by Mr. Wang does not meet the employment conditions. After the termination of the contract, Mr. Wang refuses to hand over the work and refuse to assist in handling the exit procedures. If there is any loss, he should be responsible for it.

Article 25 of the Labor Law of the People's Republic of China stipulates that if a worker is proved to be unqualified for employment during the probation period, the employer may terminate the labor contract. According to the provisions of this article, if the parties agree on the probation period in the labor contract according to law, the employer can immediately terminate the labor contract if it can provide evidence to prove that the worker does not meet the employment conditions during the probation period.

Then, can submitting false work experience to the employer be regarded as a situation that does not meet the employment conditions?

Article 8 of the Regulations of Shanghai Municipality on Labor Contracts stipulates: "Before concluding a labor contract, a worker has the right to know the relevant rules and regulations, working conditions, labor remuneration, etc. of the employer, and the employer shall truthfully explain them;"; When employing workers, employers have the right to know the health status, knowledge and skills, work experience and other information of workers, and workers should truthfully explain ". According to the provisions of this article, the parties to labor relations have the right to know each other and the obligation to inform each other before concluding labor contracts, which is the integrity rules set by laws and regulations for the parties to conclude labor contracts. Therefore, if the employer sets the conditions of good faith in the employment conditions and can prove that the worker violates the conditions of good faith during the probation period, it can regard this as a situation that does not meet the employment conditions according to the regulations.

After the employer terminates the labor relationship according to law, it shall go through the procedures of exit registration and filing according to regulations. Article 12 of the Administrative Measures of Shanghai Municipality on the Recruitment and Dismissal of Work Units stipulates that "after the termination or dissolution of the labor relationship between the employer and the full-time employees, the registration and filing procedures for the dismissal shall be completed within 7 days". In this article, there is no exception that the registration and filing procedures for the dismissal can be delayed.

Then, how to determine the liability for damages when there is a dispute over delayed dismissal?

The Notice on Several Issues Concerning the Implementation of the Regulations of Shanghai Municipality on Labor Contracts (II) stipulates that: "(I) The labor contract relationship has been dissolved or terminated, and the employer fails to comply with the Regulations If it is required to issue a valid certificate for the dissolution or termination of the labor contract relationship or fail to go through the exit formalities in time, which affects the workers to go through the unemployment registration formalities and causes losses, the employer shall compensate in accordance with the relevant provisions on unemployment insurance benefits; If other actual losses are caused to the worker, the employer shall compensate for other actual losses according to the worker's request, but no longer bear the liability for compensation of statutory unemployment insurance benefits. （2） If the employer fails to go through the exit formalities in time due to the employee's reason, the loss shall be borne by the employee ". According to the above provisions, the losses caused to the employee by the employer's failure to issue valid certificates or go through the exit formalities in time after the dissolution or termination of the labor contract are divided into two categories: one is the losses that affect the unemployment registration procedures, and the other is the actual losses. The above two kinds of losses shall be shared according to the principle of fault liability, that is, if the employer fails to issue valid certificates as required or fails to go through the exit formalities in time, it shall compensate the loss of unemployment insurance benefits or other actual losses of workers; If the employer fails to go through the exit formalities in time due to the worker, the loss shall be borne by the worker himself.