No Compensation Is Required After The Company Violates The Employee'S Compensation.

In May 3, 2014, Li applied to a car sales company, and the two sides signed a labor contract for a period of 2 years, with a monthly salary of 1800 yuan.

In March 2, 2015, the company unilaterally lifted Lee's labor contract on the grounds of poor efficiency.

During the consultation process, Li believed that he had no fault in the company's work. The company's unilateral rescission of the labor contract was a violation of the law. It should pay 3600 yuan for its compensation and 1800 yuan for its economic compensation.

The company expressed its willingness to pay 3600 yuan for the illegal labor contract relief, but thought Li had offered to pay 1800 yuan for economic compensation.

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After negotiations failed, Li submitted an arbitration application to the local labor and personnel dispute arbitration commission.

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"The eighty-seventh article provides:" if the employer violates the provisions of this law, the termination or termination of the labor contract shall be paid to the laborer in accordance with the two times of the economic compensation standard stipulated in the forty-seventh provision of this law.

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At the same time, the twenty-fifth article of the regulations on the implementation of the labor contract law also stipulates: "the employer has discharged or terminated the labor contract in violation of the provisions of the labor contract law, and has paid the compensation according to the eighty-seventh provision of the labor contract law, and no longer pays the economic compensation."

According to the above provisions, the Arbitration Commission ruled that the company paid 3600 yuan of compensation for Lee, while Li did not support the request of the company to pay an economic compensation of 1800 yuan.

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Yang is a staff member of a construction company.

In March 16, 2015, the intermediate people's court ruled that the construction company entered bankruptcy proceedings.

In May 20th, Yang directly sued to the hospital, requesting the construction company to pay labor remuneration and economic compensation totaling more than 28 yuan.

Should Yang's proposal be preceded by a labor dispute arbitration procedure?

The author believes that although Yang's claim is in the form of labor disputes, the employer can only exercise his claim for confirmation of creditor's rights because he has already entered the procedure of bankruptcy and debt repayment. He does not have to go through the preposition procedure of labor dispute arbitration.

The reasons are as follows.

In the current legal framework, the preposition of arbitration is a general procedure for handling labor disputes, but in order to protect the interests of the creditors, the enterprise bankruptcy law has made clear provisions for the liquidation of all kinds of claims.

At this time, the laborer makes a request for the payment of the labor creditor's rights, and the ruling organ can not decide that the bankrupt enterprise will pay the related creditor's rights within a specified time limit, but confirms that the laborer has the corresponding labor creditor's right for the bankrupt enterprise, and then pays the proportion according to the law in the bankruptcy liquidation procedure according to law.

According to the provisions of the Supreme People's Court on the causes of civil cases, such cases can be directly identified as "confirmation of bankruptcy bankruptcy claims".

Therefore, this kind of dispute has been treated by ordinary civil disputes after the employer has entered the bankruptcy procedure.

In addition, it can be seen from the existing law that such disputes are different from the general procedures for dealing with labor disputes.

The forty-eighth section and second paragraph of the enterprise bankruptcy law stipulates that the wages and medical expenses, disability allowance and pensions expenses owed by the debtors shall be included in the basic old-age insurance and basic medical insurance expenses that should be included in the employee's personal accounts, and the compensation that should be paid to the employees in accordance with the laws and administrative regulations.

If a worker disagrees with the list, he may request the manager to make corrections. If the manager fails to make corrections, the employee may bring a suit in the people's court.

This law gives the laborers the right to direct prosecution without labor disputes.

Compared with the labor law and the labor dispute mediation and arbitration law, the enterprise bankruptcy law is a special law in dealing with the labor claims of bankrupt enterprises. According to the principle of special law superior to the general law, the provisions of the enterprise bankruptcy law shall apply, and the workers can directly sue the people's court for their labor claims, without having to go through the preposition procedure of labor dispute arbitration.

At the same time, the twenty-first provision of the enterprise bankruptcy law stipulates that after the people's court accepts the bankruptcy petition, the civil litigation of the debtor can only be brought to the people's court that accepts the bankruptcy application.

The "civil litigation relating to debtors" of course includes labor disputes, so the intermediate people's court has jurisdiction over the case.