Case Notes: Can the years of service be combined and calculated after the labor dispatch workers are converted to labor contract workers?

Since the labor dispatch as a form of employment, many units have adopted the way of labor dispatch first and signing the labor contract on the basis of merit in their employment policies. So in this case, if it involves separation compensation later, should the years of service during the two periods of labor dispatch and labor contract be calculated together?

Let's look at a case:

Case:

From October 8, 2011 to June 30, 2013, Zhang signed labor contracts with two human resources service companies, and was dispatched to work for the same company in Beijing.

On July 1, 2013, the company signed a labor contract with Zhang directly. labor contract, the position and work content remain unchanged.

On August 24, 2017, the company made a decision to terminate the labor contract with Zhang on the grounds of serious violation of rules and regulations. Zhang was not convinced and applied for arbitration, the case was finally finalized by the second trial.

The focus of the dispute:

In the case, the company terminated the labor contract behavior was eventually found to be illegal, and another focus of the controversy is to calculate the economic compensation for the years of service from October 8, 2011, or from July 1, 2013 to start calculating?

The company claimed that Zhang officially signed a labor contract with the company on July 1, 2013, and the years of service should be calculated from that date. The two sides did not agree that the years of service during the previous labor dispatch period should be calculated consecutively to the company's years of service.

The court ruled:

The court of first instance held that the workers were arranged to work in the new employer from the original employer not for their own reasons, and the original employer did not pay the economic compensation, and the workers terminated the labor contract with the new employer in accordance with the provisions of Article 38 of the Labor Contract Law, or the new employer proposed the termination of the labor contract to the workers, and in the calculation of the payment of economic compensation or indemnity, the workers were required to pay the economic compensation or indemnity for the years of service of the employer. When calculating the years of service for the payment of economic compensation or indemnity, the years of service in the original employer shall be combined and calculated as the years of service in the new employer.

The court of first instance finally found that the years of service had been calculated from October 8, 2011, and decided to pay 277,000 yuan in compensation. The second trial held that "since October 8, 2011, Zhang's work position in the company, to July 1, 2013 directly after the signing of the contract has not been changed, the court of first instance will be the work of the above years of service combined calculation is not improper".

Commentary:

The case was based on Article 5 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (4), which reads:

The worker was arranged to work in the new employer from the original employer without his own reason, and the original employer did not pay the economic compensation, and the worker terminated his employment with the new employer in accordance with the provisions of Article 38 of the Labor Contract Law.

If the employer meets one of the following circumstances, it shall be deemed to be a "worker who is arranged to work in the new employer from the original employer not for his own reasons":

(a) the worker is still working in the original workplace and position, and the subject of the labor contract has been changed from the original employer to the new employer;

(b) the worker is still working in the original workplace and position, and the subject of the labor contract has been changed from the original employer to the new employer.

(b) The employer transfers the worker in the form of organizational assignment or appointment;

(c) The worker's work is transferred due to the merger or separation of the employer;

(d) The employer and its affiliates conclude the labor contract with the worker on a rotational basis;

(e) Other reasonable circumstances.

From this provision, the workers apply for the combined calculation of years of work, should have the following conditions:

1, non-laborer's own reasons for the case, as a party to the labor contract as the subject of the employer has changed. At the same time, the provisions of how to recognize the "workers are not their own reasons" is also defined accordingly.

2, change the subject of labor, the original employer did not pay economic compensation. The termination of a contract for reasons other than the worker's own is always accompanied by financial compensation or compensation, without which, the responsibility of the employer is not completely over.

From this decision, we can also see that the combined calculation of years of service is not only applicable to the rotation of labor contracts between affiliated enterprises, or the continuation of contractual responsibility after the merger and separation of enterprises, it can also be applied to the workers from the labor dispatch to the labor contract between the form of employment conversion.