severance pay/work contract issue

severance pay/work contract issue

Postby Mr_K » Thu Mar 16, 2017 10:56 am

Hi
After 13 years continuous employment with my employer here in china, the company can only offer me either;
- a 3 month extension to my previous 1 year contract.
- a 'New Contract' under a new company name that states if I agree then I relinquish my 'seniority status'

Am I right in thinking that I do not have to accept either? I have heard that after 10 years employment contracts they should offer me an 'open-ended' contract under the current term and conditions of my last contract? Should I be entitled to compensation?

Thank u in advance
Mr_K
Newbie
 
Posts: 5
Joined: Fri Jan 06, 2017 11:16 am

Re: severance pay/work contract issue

Postby MoonOverMiami » Thu Mar 16, 2017 3:51 pm

Ooh...grey area!

I don't know about the 10yr deal, but if you had signed more than one contract with this company then on the third signing (ie original start, first renewal-second signing, second renewal-third signing) it should be an open ended term.

If the employer does not want to renew your contract, then you are entitled to 1month per year employed, and I believe there is a limit of 10yrs. Good luck collecting, though...most employers will convince you to take less probably.

If you reject both offers, not sure if that constitutes a resignation. I'm sure your employer would try to play it that way...in which case if successful you are not entitled to any compensation.

Best talk to a lawyer...look around for Erex Chen in these forums and ask him about this. He has been on the board for a long time!
Charly: "Were you always this stupid or did you take lessons?"
Mitch: "I took lessons."
User avatar
MoonOverMiami
Fire-eater
Fire-eater
 
Posts: 2983
Joined: Mon Jan 07, 2008 9:58 am

Re: severance pay/work contract issue

Postby Longjob » Thu Mar 16, 2017 11:32 pm

Article 14 The open-ended labour contract is a labour contract in which the employer and the employee have agreed not to stipulate a definite expiration date.

The employer and the employee may conclude an open-ended labour contract upon reaching a consensus through consultation and negotiation. An open-ended labour contract shall be concluded in case that the employee proposes or agrees to renew his labour contract or to conclude a labour contract under any of the following circumstances, with the exception that the employee requests conclusion of a fixed-term labour contract:

(1) The employee has been working with the employer for a consecutive period of 10 years;

(2) Where the employer first introduces the labour contract system, or the employing state-owned-enterprise re-concludes the labour contracts as a result of restructuring, and the employee has been working with the employer for a consecutive period of 10 years and he/she is within 10 years from the statutory retirement age; or

(3) Prior to the renewal of the labour contract, a fixed-term labour contract has been concluded for two consecutive times, and the employee does not meet any of the circumstances set forth in Article 39 and items (1) and (2) of Article 40.

However, to be clear there is no obligation to automatically convert a fixed term contract into an open contract. In the event that you cannot reach agreement regarding an open contract the obligation for compensation is limited to one month for each year of fixed term.

Where it may work in an employees favour is the 10 year rule. If you have already worked for a total of more than 10 years on fixed term contracts then it could be claimed that despite a fixed term contract that you are inter alia already on an open contract.

Any compensation is limited to one month for each year up to 12 years based upon 300% of the average monthly salary during the last 12 months.

You need to speak with a lawyer regarding your options and be prepared to go to the Shanghai Labor Bureau.
User avatar
Longjob
PopStar
PopStar
 
Posts: 1073
Joined: Tue Jan 24, 2012 12:38 am
Location: Xujiahui

Re: severance pay/work contract issue

Postby MrCH » Fri Mar 17, 2017 8:13 am

Longjob wrote:
(3) Prior to the renewal of the labour contract, a fixed-term labour contract has been concluded for two consecutive times, and the employee does not meet any of the circumstances set forth in Article 39 and items (1) and (2) of Article 40.



What are the circumstances set forth in Article 39 and items (1) and (2) of Article 40?
MrCH
Talker
Talker
 
Posts: 119
Joined: Sat Nov 17, 2012 8:58 pm

Re: severance pay/work contract issue

Postby Mr_K » Fri Mar 17, 2017 3:08 pm

Thank you very much for the info guys.. It sounds complicated! So I will find a lawyer!
Mr_K
Newbie
 
Posts: 5
Joined: Fri Jan 06, 2017 11:16 am

Re: severance pay/work contract issue

Postby MoonOverMiami » Sat Mar 18, 2017 2:04 am

Was reading up on some of Erex's posts, but if you sign the new contract I do believe your current employer is still on the hooks for your severance pay. Granted you will start anew with the new employer, but at least you get your severance.

If they say they're just transferring you, then your new employer must take you with your seniority status.

Seems like they're pushing you towards quitting with the decrease vacation time and now this.

Good luck, hope your lawyer sticks it to them!
Charly: "Were you always this stupid or did you take lessons?"
Mitch: "I took lessons."
User avatar
MoonOverMiami
Fire-eater
Fire-eater
 
Posts: 2983
Joined: Mon Jan 07, 2008 9:58 am


Return to Work Issues

Who is online

Users browsing this forum: No registered users and 0 guests
Administration Control Panel