Method observation

case

Mr. Jiang signed a one-year labor contract with a commercial company. The contract agreed that the probation period would be two months, and the monthly salary would be 7000 yuan. After the probation period, the monthly salary would be 8500 yuan. After that, Mr. Jiang checked in at the time agreed by both parties. To Mr. Jiang's surprise, after the first day of work, the HR Department of the trading company informed him that he would not come back the next day. He was dismissed and asked to go to the accountant to receive a daily salary of 200 yuan. After receiving the Notice of Termination of Labor Relations, Mr. Jiang took a close look at it, but the trading company did not give reasons for dismissal. Mr. Jiang wants to know whether it is legal for the trading company to dismiss him without reason? What rights can I claim?

analysis

First of all, the dismissal of Mr. Jiang from the business company is an illegal termination of the labor contract.

The laborer may resign without reason, but the employer shall comply with the statutory conditions and procedures when dismissing the laborer. Article 21 of the Labor Contract Law stipulates: "During the probation period, the employer may not terminate the labor contract, except for the circumstances stipulated in Article 39 and Items 1 and 2 of Article 40 of this Law. If the employer terminates the labor contract during the probation period, it shall explain the reasons to the employee."

Article 39 of the Labor Contract Law stipulates: "The employer may terminate the labor contract if a worker has one of the following circumstances: (1) the employee is proved not to meet the employment conditions during the probation period; (2) the employee seriously violates the rules and regulations of the employer; (3) the employee seriously neglects his duty and engages in malpractices for selfish ends, causing significant damage to the employer; (4) The laborer establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of his own unit, or refuses to correct after being proposed by the employer; （5） The labor contract is invalid due to the circumstances specified in Item 1 of Paragraph 1 of Article 26 of this Law; （6） Those who are investigated for criminal responsibility according to law. " That is to say, if a worker has one of the above fault situations, whether during the probation period or after the probation period, the employer can dismiss immediately without prior notice or payment of economic compensation.

However, the employer must give reasons for dismissal in the Notice of Termination of Labor Relations, whether it adopts immediate dismissal or other dismissal methods, and must be clear and fixed. As far as this case is concerned, the business company adopts the method of immediate dismissal, so it should be written that Mr. Mingjiang has one of the six situations specified in Article 39 of the Labor Contract Law, and there must be evidence to prove it. In fact, the business company did not give any reason, which obviously belongs to the illegal termination of the labor contract.

In addition, if Mr. Jiang applies for labor arbitration or brings a lawsuit in this regard, then in the trial of the case, even if the trading company gives the reason for dismissal that Mr. Jiang has a certain situation in Article 39 of the Labor Contract Law, the labor arbitration institution and the court will not recognize it, and it will still be deemed as illegal termination of labor relations. That is to say, it will not be supported if the reason is not stated when the labor relationship is dissolved, but only stated when a lawsuit is filed. Because the labor arbitration institution and the court, when judging the legality of the unilateral termination of labor relations by the employer, only take the content of the notice of termination sent by the employer to the worker as the basis for determination, that is, the reasons for termination are fixed, and the party's intention at the time shall prevail. The reasons for dismissal added or added later by the employer are not accepted.

Secondly, Mr. Jiang can claim the following rights:

First, we have the right to ask the trading company to pay compensation according to law, that is, twice the economic compensation. The first paragraph of Article 47 of the Labor Contract Law stipulates: "The economic compensation shall be paid to the worker according to the number of years he has worked in the unit, and the standard of one month's salary shall be paid to the worker for every full year. If he has worked for more than six months but less than one year, the economic compensation shall be calculated as one year; if he has worked for less than six months, the economic compensation shall be paid to the worker for half a month's salary." Article 87 stipulates: "If the employer terminates or cancels the labor contract in violation of the provisions of this Law, it shall pay compensation to the worker in accordance with twice the economic compensation standard specified in Article 47 of this Law." Since the dismissal of Mr. Jiang by the trade company constitutes an illegal act, it shall pay 7000 yuan (7000 yuan/month × half a month × 2 times) of compensation to Mr. Jiang according to law.

Second, have the right to ask the trading company to make up the wage difference. In this case, Mr. Jiang went to work for one day, and the business company only paid him 200 yuan, which was obviously not in line with the regulations. According to the Notice on the Annual Average Monthly Working Hours and Wage Conversion of Employees (LSBF [2008] No. 3), the number of days for monthly salary calculation of employees is 21.75 days. Therefore, the one-day salary that the trading company should pay Mr. Jiang should be (7000 yuan ÷ 21.75 days=321.84 yuan).