Recently, a girl became popular on the Internet with a video of complaining about the company after leaving the company. The girl kept emphasizing throughout the video that the employment notice she received stated that the monthly salary during the probationary period was 6,000 yuan, but she only worked in the company for one day. The monthly salary during the probationary period is only 2,500 yuan. Coupled with other things that made her unsatisfactory, she resigned the next day, and some netizens called it "post-00s to rectify the workplace".
In reality, if the employment notice is inconsistent with the treatment agreed in the labor contract, what should be done? If the employee insists on the treatment standard in the employment notice when signing the labor contract, but the employer refuses, can the employee claim the difference of twice the salary of the unsigned labor contract? Can the employer terminate the labor relationship without paying economic compensation?
The employment notice is inconsistent with the labor contract. How to determine the legal effect?
The employment notice is an expression of willingness by the employer to establish a labor relationship with the employee who decides to hire, and a contractual relationship will be formed after the employee makes a commitment. The acceptance notice meets the constitutive requirements of the offer, and its legal nature should belong to the offer. When the employer issues an employment notice to the worker who decides to hire, and the worker accepts and reports to the employer, a labor contract relationship exists between the two parties, and the specific content of this labor relationship is reflected in the employment notice. In other words, the employment notice is transformed from an offer unilaterally issued by the employer into an agreement between the employer and the employee.
In practice, most of the labor contracts signed by employers and workers basically contain the terms of work place, job position, remuneration, etc. determined in the notice. In this case, the legal effect of the employment notice is equivalent to the labor contract. However, there are also differences between the labor contract signed by the employer and the worker and the employment notice, especially in terms of remuneration. When the content of the employment notice is inconsistent with the labor contract, how to determine the legal effect of the employment notice?
has some views that, since the labor contract is signed after the employment notice, if the content of the employment contract is inconsistent with the employment notice, it should be understood that the contract modifies the content of the employment notice, and the employment contract shall prevail.
But in 2021 Shenzhen Intermediate People's Court announced the typical labor dispute case Zhou Moumou and an international company labor contract dispute, the court held that labor contract law belongs to social law , and social law adjusts the subject The unequal relationship between them can achieve a balance of interests between the disadvantaged groups and the powerful groups in society. Laborers are often in a disadvantaged position in labor contract relationships. If the general contract law theory is used to consider the requirements for modification of offers in labor contracts, it is likely to cause unfairness to laborers and is not conducive to protecting the legitimate rights and interests of laborers.
The court held that the validity of the employment notice should be treated differently according to the actual situation, that is, when the employment contract clearly stipulates that the terms of the employment notice will no longer be implemented, it is deemed that both parties have reached a new agreement, and the employment contract should be used as the basis at this time; If the contents stated in the employment notice do not appear in the employment contract, the employment contract shall be attached to the employment contract and have the same legal effect as the employment contract.
In this case, the labor contract signed by the two parties did not stipulate that the contents of the employment notice would no longer be implemented, and the annual double salary agreed in the employment notice was not reflected in the employment contract. In this case, the employment notice could be used as an attachment to the employment contract. , which is binding on both parties, and Zhou Moumou's request for an international company to pay the 2018 annual double salary should be supported. Regarding the standard of the annual double salary, the two parties did not clearly agree, and the court determined it to be 6787.59 yuan based on the average salary that Zhou Moumou should pay in 2018.
According to the above referee caliber, before the girls on the hot video sign the labor contract, the salary and treatment standards stipulated in the employment notice are binding on both parties. And she has the right to request to sign a labor contract according to the salary standard in the employment notice.
Can a worker claim the difference of twice the salary for an unsigned labor contract?
Then, if the company refuses to sign a labor contract according to the salary standard on the employment notice, can she claim twice the salary difference for the unsigned labor contract?
In judicial practice, even if both parties have not signed a formal written labor contract, if both parties have signed a labor contract with the mainOther written documents that require mandatory clauses can generally be deemed to have signed a written labor contract. According to the Guiding Case No. 179 Judgment Points issued by the Supreme People's Court: "The written agreement signed by the employer and the employee includes the work content, labor remuneration, labor contract duration, etc. that comply with the provisions of Article 17 of the Labor Contract Law. According to the terms of the labor contract, if the laborer demands to pay the second time salary on the grounds that the employer has not concluded a written labor contract, the people's court shall not support it."
For example, in the labor dispute case between Tang Guangzhen and Lesheng Century (Beijing) Technology Co., Ltd., The court held that: "Judging from the content of the employment notice, the notice stipulated Tang Guangzhen's salary standard, entry time, working hours, post, work place, and probationary period, and already included the main necessary clauses of the labor contract... The above situation has already demonstrated that the two parties have reached an agreement on establishing a labor relationship. The content of the notice already contains the core elements of a labor contract, which can not only clarify the labor relationship between the two parties, but also fix the rights and obligations of both parties, and realize the function of a written labor contract. Therefore, the court ruled that Lesheng Company does not need to pay Tang Guangzhen twice the wage difference between May 6, 2015 and June 30, 2015, when the labor contract was not signed.” ((2016) Jing 01 Min Zhong No. 3819)
During the process, both parties cannot violate the principle of good faith . Judges Shi Yang and Ni Xin of Shanghai No. 1 Intermediate Court believed that whether the negotiation behavior of the employer conforms to the principle of good faith can generally be determined from the following aspects: First, it depends on whether the employer has provided the laborer with the contract to be signed. Written employment contract. The second is to see whether the content of the written labor contract to be signed provided by the employer is consistent with the actual labor rights and obligations. The third is to see whether the employer has responded to the reasonable request made by the worker. ("Typical Labor Dispute Cases and Judgment Viewpoints", People's Court Press, , December 2019, 1st edition, p. 101)
According to this, although the employer provides the labor contract to be signed, if the content of the contract reduces the labor The rights actually enjoyed by the laborer, aggravate the actual obligations of the laborer, and deprive the laborer of making a counter-offer by threats, fraud, etc., for the legal and reasonable modification requirements of the written contract terms put forward by the laborer during the negotiation process. rights, such consultations shall not be considered as good faith consultations. Under this circumstance, the employee's request for the employer to pay double the wage difference may still be supported.
Of course, only if the employer has not concluded a written labor contract with the worker for more than one month but less than one year from the date of employment, it shall pay the worker twice the monthly wages. If the girl resigned on the second day of her entry, she would not receive the difference of double the salary.
Can the employer terminate the labor contract without paying economic compensation?
From another perspective, if she refuses to sign a labor contract according to the reduced salary standard, can the company terminate the labor contract without paying economic compensation?
Someone said that according to Article 5 of the " Implementation Regulations of the Labor Contract Law ": "Within one month from the date of employment, if the employee does not enter into a written labor contract with the employer after being notified in writing by the employer, the employer shall If the laborer is notified in writing to terminate the labor relationship, there is no need to pay the laborer economic compensation, but the labor remuneration for the actual working time shall be paid to the laborer according to the law.”
In fact, the principle of good faith is also implied here. When the employer provides evidence to prove that the laborer refuses to sign a written labor contract, the laborer can also prove the rationality and legality of not signing a contract with the employer. For example, the company refuses to sign a labor contract according to the salary standard agreed in the employment notice. In this case, the employer should bear the adverse consequences, including the failure to terminate the labor contract without paying economic compensation in accordance with Article 5 of the Implementation Regulations of the Labor Contract Law.
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