Viewpoint | A brief analysis of the consensus termination of the labor contract.
Published:
2023-06-09
Article 36 of the "Labor Contract Law" stipulates that the employer and the employee may terminate the labor contract by consensus. Because of its flexibility and low risk, consensus cancellation is also one of the most used ways of cancellation by employers. Referee's point of view 1. Unless the laborer proposes to terminate the labor contract in accordance with Article 38 of the Labor Contract Law, the laborer proposes to terminate the labor contract, and both parties agree to terminate the labor contract, the employer may not pay economic compensation for the termination of the labor contract. 2. If the employer proposes to terminate the labor contract and both parties agree to terminate the labor contract, the employer shall pay the employee economic compensation for the termination of the labor contract. 3. If the labor contract is terminated by consensus, it shall not be subject to the restriction of 30 days' written notice as stipulated in Articles 37 and 40 of the Labor Contract Law. 4. Except for the reasons provided by law, if the parties agree on the reasons for the termination or termination of the labor contract, the agreement shall be null and void, except where the agreement of the parties is specific to the statutory reasons. 5. The agreement reached between the worker and the employer on the cancellation or termination of the labor contract, the payment of wages, overtime pay, economic compensation or compensation, etc., does not violate the mandatory provisions of laws and administrative regulations, and there is no fraud, Coercion or take advantage of the danger of others shall be deemed valid. If the agreement is significantly misunderstood or is obviously unfair, and the parties request to cancel it, the people's court shall support it. 1. Dissolution of Labor Contract and Economic Compensation by Consensus According to Item 2 of Article 46 of the Labor Contract Law, if the employer proposes to terminate the labor contract to the laborer in accordance with Article 36 of the Labor Contract Law and terminates the labor contract through consultation with the laborer, the employer shall pay the laborer Economic compensation. If the laborer proposes to terminate the labor contract and negotiates with the employer to terminate the labor contract, the law does not require the employer to pay economic compensation to the laborer. However, if the employer and the employee reach an agreement to pay economic compensation to the employee, the agreement shall be valid. Dissolution of the labor contract and the right to rescind the contract by consensus of the 2. Article 36 of the Labor Contract Law clearly stipulates that the employer and the employee may terminate the labor contract by consensus. However, this does not mean that both parties to the labor relationship can agree on the cause of termination of the labor contract other than the legal cause in the labor contract, that is, there is no agreed right of termination in the field of labor contract. According to the provisions of the Labor Contract Law, the employer can only unilaterally terminate the labor contract in accordance with the fault dismissal system stipulated in Article 39 of the Law, the no-fault dismissal system stipulated in Article 40, and the economic layoff system stipulated in Article 41, except for the termination of the labor contract by consensus between the two parties in the labor relationship. The right of workers to terminate the labor contract is almost unlimited. Under normal circumstances, they only need to notify the employer 30 days in advance or 3 days in advance during the probation period. Therefore, the legislative purpose of the "Labor Contract Law" is to restrict the employer's right to terminate the labor contract in order to maintain stable labor relations. If the parties are allowed to agree on the reasons for the exercise of the right of discharge, it is bound to overrun the legislative purpose of the Labor Contract Law. In summary, both parties to the labor relationship can terminate the labor contract by consensus, but they cannot break through the legal cause of termination in the labor contract in advance and agree on the right to terminate the contract. Except for the reasons stipulated by law, if the parties agree on the reasons for the termination or termination of the labor contract, the agreement is invalid, except that the parties' agreement is specific to the statutory reasons. The meaning of the 3. to terminate the labor contract by consensus is the limit. In practice, when the two parties to the labor relationship negotiate the termination of the labor contract, they often negotiate whether to give economic compensation and how much economic compensation to give. When the economic compensation and other matters are not agreed, they will not sign an agreement to terminate the labor contract. However, there are also labor relations between the two parties in the economic compensation is not negotiated when the first signed the termination of the labor contract agreement, and then on the economic compensation matters dispute, one party on this ground to deny the validity of the termination of the labor contract agreement. The key to dealing with this issue is to clarify the meaning of the termination of the labor contract by consensus. The consensual termination of the labor contract is a consensual termination arrangement for the labor contract relationship between the two parties, and the meaning of the consensual termination is independent in the absence of evidence to prove that there are other conditional factors. After the two parties have reached an agreement to terminate the labor contract, if one party goes back on its word, it shall not be supported. On the other hand, if there is evidence that the termination of the labor contract is subject to certain conditions, the effect of the termination of the labor contract does not occur when the conditions are not fulfilled. 4. Consequences of Dissolution of Labor Contract by Consensus If both parties to the labor relationship terminate the labor contract by consensus, the following legal consequences will occur according to law: 1. If the laborer proposes to terminate the labor contract and both parties to the labor relationship agree to terminate the labor contract, the employer does not need to pay economic compensation; if the employer proposes to terminate the labor contract and both parties to the labor relationship agree to terminate the labor contract, the employer needs to pay economic compensation in accordance with the law. 2. If the two parties to the labor relationship agree that the employer is not required to pay economic compensation, if the agreement does not violate the true intention of the parties, the agreement shall be followed in practice. 3. The employer shall, within 15 days after the termination of the labor contract by both parties, complete the formalities for the transfer of archives and social security relations for the workers in accordance with the law. If the delay or refusal to do so causes losses to the worker, the worker may request compensation from the employer. Key points of practice 1. Pay attention to the examination of whether the party proposing the termination of the labor contract is the worker or the employer. 2. Pay attention to the examination of whether the termination of the labor contract agreement has been revoked or legally invalid. 3. Pay attention to the scope of the meaning of consensus, whether it only includes the termination of the labor contract itself, or also includes other matters such as economic compensation. 4. Pay attention to review whether the termination of the labor contract by consensus is premised on certain conditions and whether the prerequisite conditions have been fulfilled. If not, the reasons should be examined. Practical Operation Guidance It is recommended that the employer or employee retain the evidence of the whole process of negotiating the termination of the labor contract.
Article 36 of the "Labor Contract Law" stipulates that the employer and the employee may terminate the labor contract by consensus. Because of its flexibility and low risk, consensus cancellation is also one of the most used ways of cancellation by employers.
Referee's point of view
1. Unless the laborer proposes to terminate the labor contract in accordance with Article 38 of the Labor Contract Law, the laborer proposes to terminate the labor contract, and both parties agree to terminate the labor contract, the employer may not pay economic compensation for the termination of the labor contract.
2. If the employer proposes to terminate the labor contract and both parties agree to terminate the labor contract, the employer shall pay the employee economic compensation for the termination of the labor contract.
3. If the labor contract is terminated by consensus, it shall not be subject to the restriction of 30 days' written notice as stipulated in Articles 37 and 40 of the Labor Contract Law.
4. Except for the reasons provided by law, if the parties agree on the reasons for the termination or termination of the labor contract, the agreement shall be null and void, except where the agreement of the parties is specific to the statutory reasons.
5. The agreement reached between the worker and the employer on the cancellation or termination of the labor contract, the payment of wages, overtime pay, economic compensation or compensation, etc., does not violate the mandatory provisions of laws and administrative regulations, and there is no fraud, Coercion or take advantage of the danger of others shall be deemed valid. If the agreement is significantly misunderstood or is obviously unfair, and the parties request to cancel it, the people's court shall support it.
1. Dissolution of Labor Contract and Economic Compensation by Consensus
According to Item 2 of Article 46 of the Labor Contract Law, if the employer proposes to terminate the labor contract to the laborer in accordance with Article 36 of the Labor Contract Law and terminates the labor contract through consultation with the laborer, the employer shall pay the laborer Economic compensation.
If the laborer proposes to terminate the labor contract and negotiates with the employer to terminate the labor contract, the law does not require the employer to pay economic compensation to the laborer. However, if the employer and the employee reach an agreement to pay economic compensation to the employee, the agreement shall be valid.
Dissolution of the labor contract and the right to rescind the contract by consensus of the 2.
Article 36 of the Labor Contract Law clearly stipulates that the employer and the employee may terminate the labor contract by consensus. However, this does not mean that both parties to the labor relationship can agree on the cause of termination of the labor contract other than the legal cause in the labor contract, that is, there is no agreed right of termination in the field of labor contract.
According to the provisions of the Labor Contract Law, the employer can only unilaterally terminate the labor contract in accordance with the fault dismissal system stipulated in Article 39 of the Law, the no-fault dismissal system stipulated in Article 40, and the economic layoff system stipulated in Article 41, except for the termination of the labor contract by consensus between the two parties in the labor relationship. The right of workers to terminate the labor contract is almost unlimited. Under normal circumstances, they only need to notify the employer 30 days in advance or 3 days in advance during the probation period. Therefore, the legislative purpose of the "Labor Contract Law" is to restrict the employer's right to terminate the labor contract in order to maintain stable labor relations. If the parties are allowed to agree on the reasons for the exercise of the right of discharge, it is bound to overrun the legislative purpose of the Labor Contract Law.
In summary, both parties to the labor relationship can terminate the labor contract by consensus, but they cannot break through the legal cause of termination in the labor contract in advance and agree on the right to terminate the contract. Except for the reasons stipulated by law, if the parties agree on the reasons for the termination or termination of the labor contract, the agreement is invalid, except that the parties' agreement is specific to the statutory reasons.
The meaning of the 3. to terminate the labor contract by consensus is the limit.
In practice, when the two parties to the labor relationship negotiate the termination of the labor contract, they often negotiate whether to give economic compensation and how much economic compensation to give. When the economic compensation and other matters are not agreed, they will not sign an agreement to terminate the labor contract. However, there are also labor relations between the two parties in the economic compensation is not negotiated when the first signed the termination of the labor contract agreement, and then on the economic compensation matters dispute, one party on this ground to deny the validity of the termination of the labor contract agreement. The key to dealing with this issue is to clarify the meaning of the termination of the labor contract by consensus.
The consensual termination of the labor contract is a consensual termination arrangement for the labor contract relationship between the two parties, and the meaning of the consensual termination is independent in the absence of evidence to prove that there are other conditional factors. After the two parties have reached an agreement to terminate the labor contract, if one party goes back on its word, it shall not be supported. On the other hand, if there is evidence that the termination of the labor contract is subject to certain conditions, the effect of the termination of the labor contract does not occur when the conditions are not fulfilled.
4. Consequences of Dissolution of Labor Contract by Consensus
If both parties to the labor relationship terminate the labor contract by consensus, the following legal consequences will occur according to law:
1. If the laborer proposes to terminate the labor contract and both parties to the labor relationship agree to terminate the labor contract, the employer does not need to pay economic compensation; if the employer proposes to terminate the labor contract and both parties to the labor relationship agree to terminate the labor contract, the employer needs to pay economic compensation in accordance with the law.
2. If the two parties to the labor relationship agree that the employer is not required to pay economic compensation, if the agreement does not violate the true intention of the parties, the agreement shall be followed in practice.
3. The employer shall, within 15 days after the termination of the labor contract by both parties, complete the formalities for the transfer of archives and social security relations for the workers in accordance with the law. If the delay or refusal to do so causes losses to the worker, the worker may request compensation from the employer.
Key points of practice
1. Pay attention to the examination of whether the party proposing the termination of the labor contract is the worker or the employer.
2. Pay attention to the examination of whether the termination of the labor contract agreement has been revoked or legally invalid.
3. Pay attention to the scope of the meaning of consensus, whether it only includes the termination of the labor contract itself, or also includes other matters such as economic compensation.
4. Pay attention to review whether the termination of the labor contract by consensus is premised on certain conditions and whether the prerequisite conditions have been fulfilled. If not, the reasons should be examined.
Practical Operation Guidance
It is recommended that the employer or employee retain the evidence of the whole process of negotiating the termination of the labor contract.
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