Employees Can Not Be Directly Disqualified From The Work Contract.

Liu entered a cutting workshop of a garment factory, and signed a 1 year labor contract with the garment factory, with a monthly salary of 2800 yuan. In July 1, 2013, a clothing factory issued a notice of termination of labor contract to Liu, saying Liu did not finish in June. Work quota It should be regarded as incompetent, and the garment factory decides to terminate the labor contract with Liu.

After receiving the notice of termination of the labor contract, Liu left the garment factory in July 1, 2013 and did not go back to work. After Liu applied for arbitration to the labor and personnel dispute arbitration committee, he asked the garment factory to pay 2800 yuan for the economic compensation for breaking the labor contract illegally. The Arbitration Commission supported Liu's request for arbitration, and a garment factory refused to accept it and sued the court for payment of the economic compensation.

The court heard that Labor Contract Law "Article fortieth stipulates that workers are not competent, and they are still not competent to work after training or adjustment. The employer can terminate the labor contract in writing 30 days ahead of time, or pay 1 months' extra wages.

In this case, even if Liu is not competent for his job, Garment factory It should also carry out business training for them, improve their vocational skills, or adjust Liu to other jobs that can be competent. This is the employer's obligation under the labor contract law.

If a garment factory does not carry out business training or adjustment of jobs to Liu, directly terminating the labor contract is a violation of the labor contract. The court decided that the clothing factory should pay Liu Yuan an economic compensation of 2800 yuan for breaking the labor contract illegally.

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[case] Huang worked in a company that paid monthly wages in cash monthly. At the same time, the company did not sign a written labor contract with Hwang, nor did it handle social security procedures and pay social insurance premiums in accordance with the law. In view of these practices, Huang believes that the prospects for the development of the company are not very good, and seriously infringes upon their legitimate rights and interests, so they are ready to resign. So, how does Huang prove the existence of labor relations with the company without written labor contracts?

[analysis] according to China's labor law and labor contract law and other relevant laws and regulations, labor relations are established on the day of self employment. If the employer fails to sign a labor contract with the laborer, it is recognized that when the labor relationship exists between the two parties, it may refer to the record of payment of wages or records (the roster of workers' wages), the record of paying various social insurance premiums, the certificates issued by the employer to the laborers, etc., which can prove the identity of the laborers; the recruiting records filled by the employees, such as "registration form", "application form" and so on, and the testimony of other workers.

Accordingly, under the condition of no written labor contract, Hwang should collect timely evidence such as payroll, attendance record or registration form with company seal, as well as testimony of company colleagues. Because according to the relevant laws and regulations, these evidential materials are enough to prove that Huang once worked in the company. At the same time, Hwang needs to submit these materials to the local labor dispute arbitration committee to apply for confirmation of the fact labor relationship between the two sides.