Yang Zi
The limitation of arbitration is the first threshold for workers to safeguard their rights. Although China's Labor Dispute Mediation and Arbitration Law stipulates that the limitation period for applying for arbitration of labor disputes is one year, this is only a general principle. Different dispute matters have different starting time. Six common limitation of action should be kept in mind!
1、 Overtime pay is in the nature of salary, not subject to the limitation of one year
Case Zhang Shoufeng is a non staff employee of an administrative law enforcement department. When the contract expires in April 2023, Zhang Shoufeng does not renew the labor contract because of his low salary, and proposes that he has worked overtime for many times in the past three years and never paid overtime pay. The unit only agrees to pay overtime pay for nearly one year, but rejects the previous overtime pay on the grounds that his claim exceeds the limitation of action for one year. If Zhang Shoufeng applies for labor arbitration, can his claim for overtime pay over the past three years be legally supported?
[Comment] The fourth paragraph of Article 27 of the Labor Dispute Mediation and Arbitration Law stipulates that: “ If a dispute arises due to the arrears of labor remuneration during the duration of the labor relationship, the application for arbitration by a worker shall not be subject to the limitation period of one year for arbitration; However, if the labor relationship is terminated, it shall be proposed within one year from the date of termination of the labor relationship ” 。 Opinions of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Law fifty-three Article: “ wages ” Generally, it includes salary for extended working hours. Since overtime pay belongs to the salary for extended working hours, Zhang Shoufeng advocated that three Of The overtime pay did not exceed the time limit for arbitration proceedings.
2、 Double salary is punitive compensation, which is not protected by law after one year
Case Zhang Dan worked as a comprehensive worker in the service company on November 3, 2019, and the company has not paid social pension insurance for Zhang Dan. Recently, when the company terminated the labor contract with Zhang Dan, because the company did not pay social insurance for him and did not sign a labor contract, Zhang Dan applied for labor arbitration, required the company to pay economic compensation, did not sign a labor contract with double the wage difference, and paid social pension insurance. In addition to the claim for economic compensation, the Arbitration Commission did not support Zhang Dan's claim that the supplementary payment of social insurance was not within the scope of arbitration, and that the double wage difference of the labor contract not signed had already exceeded the time limit for arbitration. After Zhang Dan filed a lawsuit, he was also rejected by the court.
[Comment] The time limit for applying for arbitration of labor disputes as stipulated by law is one year. During the duration of labor relations, if a dispute arises due to the arrears of labor remuneration, it is not subject to the above limitation period for arbitration. Since double salary is a punitive measure for the employer not to sign a written labor contract with the worker after employment, it is a punitive compensation, not a labor remuneration payable based on the labor provided by the worker, so the claim of double salary should be subject to the limitation period of one year arbitration. Zhang Dan claimed the double wage difference between December 4, 2019 and November 4, 2020, but his application for arbitration on November 1, 2023 has exceeded the legal limitation of action, and certainly will not be supported by the court.
3、 To apply for labor relations arbitration for work-related injuries, the one-year limitation must be observed
Case Sun Lei is an employee of a construction company. On June 20, 2015, Sun Lei was scratched by a heavy dump truck at the construction site. After being compensated by the owner of the accident, Sun Lei failed to work at the construction site due to his injury and died of cerebral thrombosis on November 14, 2016. Sun Lei never claimed rights from his company after he was injured until he died. Until February 28, 2017, Sun Lei's wife and daughter claimed industrial injury treatment from the construction company, but the company did not recognize the existence of labor relations, and applied to the arbitration court for confirmation of labor relations arbitration. Since the request has exceeded the time limit for labor arbitration, the arbitration court decided not to file a case.
[Analysis] Sun Lei was injured because of his work when he was working. Although he has been compensated by the infringer of the traffic accident, Sun Lei has the right to claim industrial injury treatment according to the legal provisions that tort compensation and industrial injury compensation can be partially "shared", but the claim of this right must be within the time limit specified by the law. That is to say, if it is necessary to confirm the labor relationship when applying for industrial injury, it shall apply for arbitration to confirm the labor relationship within one year from the date of injury. If the time limit is exceeded, the law will not protect it. In this case, Sun Lei did not claim this right before his death. After Sun Lei died, his wife and daughter asked for confirmation of the existence of labor relations with the company, but they did not submit it within the statutory time limit, resulting in the expiration and invalidation of the right of action.
IV High temperature allowance “ Included in enterprise payroll ” One year limitation is beyond reach
Case An Yu is an installer employed by a home appliance sales company. In the past four years of work, the company has paid high temperature allowance to Anyu. On November 8, 2023, after the expiration of the labor contract signed between Anyu and the company, Anyu proposed to the company that it should pay the high-temperature allowance for four years. The company only agreed to pay the high-temperature allowance in 2023 on the grounds that the request of Anyu had already exceeded the limitation of action. Is the company's statement correct?
[Comment] The Notice on Adjusting the Standard of Summer High Temperature Allowance jointly issued by Fujian Provincial Human Resources and Social Security Department and other six departments stipulates that “ The high-temperature allowance paid by the employer is included in the total wage, but not included in the minimum wage standard ” 。 The notice indicates that the high temperature allowance is one of the labor remuneration 。 Since it is labor remuneration, according to the provisions of Paragraph 4, Article 27 of the Labor Dispute Mediation and Arbitration Law, An Yu claims that the high-temperature allowance does not exceed the time limit. Anyu's job position and nature meet the standard for receiving high-temperature allowance, so the company should reissue the overdue high-temperature allowance to Anyu according to law.
5、 Paid annual leave may not be subject to one-year limitation
Case CHOI Kun joined a company as a driver on January 6, 2020. In the past four years of his work, the company has never arranged for Cui Kun to take annual leave, nor has the company paid him the salary for the annual leave he has not taken. When Cui Kun resigned on his own initiative recently, he proposed to the company that he should be paid the salary for annual leave that has not been taken in the past four years. The company rejected him on the grounds that he had never applied for annual leave, which was his voluntary waiver of the right to leave, and that his claim had already passed the one-year limitation of arbitration.
[Comment] No matter whether the employee applies for annual leave or not, as long as the employer has not arranged it, compensation shall be paid. Annual leave is the embodiment of workers' right to rest and leave. The annual leave that should be taken but not taken is converted into wages, that is, 200% of wages and remuneration is a kind of economic compensation that can not be enjoyed because of workers' right to rest, and is not part of workers' inherent labor remuneration. Therefore, it shall be subject to the one-year limitation of arbitration. However, Paragraph 2 of Article 5 of the Regulations on Paid Annual Leave of Employees stipulates that: one It can be arranged in a centralized way or in sections within a year. Generally, it is not arranged across years. If it is really necessary for the unit to arrange annual leave for employees across years due to the characteristics of production and work, it may one Annual arrangements. The above provisions indicate that if the company does not make arrangements for the annual leave that the employee should take in the current year, it can make arrangements across one year. Therefore, in this case, Cui Kun can claim compensation for paid annual leave in the past three years since 2021. The reason is: CHOI Kun in 2022 one month one I should know that the company has not arranged two thousand and twenty-one Annual leave, which has not been arranged for another year, and CHOI Kun will take it in 2023 one month one I know that the company has been unable to arrange its annual leave. Its litigation effect is two thousand and twenty-three year one month one Solstice two thousand and twenty-three year twelve month thirty-one Day.
6、 The loss of pension insurance benefits can be counted from the one-year limitation period
Case Zhao Shuwen worked as a cleaner in the rehabilitation center of a hospital from November 2006 to March 2022. When Zhao Shuwen entered the job, the two parties did not sign a labor contract, but only made an oral agreement on Zhao Shuwen's monthly salary. Since the beginning of 2020, Zhao Shuwen's monthly salary is 1800 yuan. In March 2022, a hospital informed Zhao Shuwen to change to labor dispatching. Zhao Shuwen refused to accept labor dispatching, and no agreement was reached through consultation with the hospital. After that, Zhao Shuwen did not go to work. The rehabilitation center has not paid Zhao Shuwen any salary since April 2022. Zhao Shuwen asked the hospital to pay the loss of pension insurance benefits. The hospital refused on the grounds that it was too late.
[Comment] The first paragraph of Article 27 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China stipulates that the time limit for applying for arbitration of labor disputes is one year. The limitation period for arbitration shall be calculated from the date when the parties know or should know that their rights have been infringed. Zhao Shuwen in this case in 2017 six month fourteen He knew or should have known that he could not enjoy the pension insurance benefits due to the fault of the hospital when he reached the retirement age of the court on the two thousand and seventeen year six month fourteen The time limit for arbitration shall be calculated from. Zhao Shuwen on 202 two April twenty-six The claim for arbitration was filed on July 1, and no evidence was provided to prove that the arbitration prescription was interrupted or suspended for the loss of pension insurance benefits, which had already exceeded the limitation of action for one year and could not be supported by law.
Paying social pension insurance for workers is a mandatory provision of the law for employers. Since the hospital has not paid social pension insurance for Zhao Shuwen, Zhao Shuwen cannot retire and enjoy pension benefits, and the loss is huge. Zhao Shuwen should have claimed to the hospital or complained to the labor supervision department to solve the problem during his work, and should have claimed at the latest when he reached the legal age for rejection, but Zhao Shuwen two thousand and twenty-two year four month twenty-six I only claimed after I stopped working on January 1, because I missed the statutory statute of limitations, which led to huge losses that could not be recovered. The lesson is extremely profound!
