In recent years, the employer has demanded more and more labor disputes caused by the compensation of laborers. If the laborer causes economic losses to the employer due to his negligence or fault in the course of his work, should he be liable to the employer for compensation? How is the amount of compensation determined? There is no clear stipulation on this issue, and there is a lot of controversy in practice.
First, the main point of view
Viewpoint 1: It is considered that the employee's negligence or fault causes damage to the employer. It is part of the employer's management risk. Therefore, the employer should bear this risk and should not pass it on to the laborer, that is, the employee should not be liable for compensation;
Viewpoint 2: It is considered that the employer and the laborer are a special contractual relationship. The laborer provides labor to the employer according to law, and the employer pays the wages according to law. If the laborer causes losses to the employer because of his own fault, the laborer should be based on labor. The contract stipulates that it shall be liable for compensation, but the compensation standard shall be comprehensively determined according to its work responsibilities, fault degree, income status, and loss size.
Due to the relevant laws, the provisions on this issue are not yet clear. In practice, there will be different judgments in the same case. Many cases are reviewed, and there are more views on the second. However, based on what kind of legal relationship, the handling method will be different. The content of this article is based on labor relations and claims compensation.
2. The main legal basis for the employer to claim compensation based on labor relations
1. The Labor Law does not involve it. Article 90 of the Labor Contract Law stipulates that if a laborer illegally terminates a labor contract or violates the confidentiality obligations or competition restrictions stipulated in the labor contract and causes losses to the employer, Should be liable for compensation.
2. Article 16 of the Interim Provisions on Wages Payment stipulates that if the employee causes economic losses to the employer due to the employee's own reasons, the employer may require compensation for economic losses in accordance with the labor contract;
3. Article 12 of the Regulations on Salary Payment in Jiangsu Province stipulates that laborers shall cause economic losses to the employer. The employer shall deduct the compensation fee from the wages according to the provisions of the labor contract and the rules and regulations formulated according to law..."
Third, you can ask for compensation for employees
In summary of the above provisions, the employer requires the laborer to assume the liability for compensation:
1. The employee violates the obligation of confidentiality;
2. Laborers violate the "competition restrictions" agreement;
3. The laborer’s action to terminate the labor contract is illegal; (eg, the employee’s unilateral resignation does not notify the employer 30 days in advance)
4. The worker himself causes losses to the employer.
4. The constituent elements of the claim for compensation
Can employees claim compensation from employees if they have the above-mentioned situations? The answer is no, you must have several requirements for employee compensation:
1. The employee is at fault or fault;
2. The act causes losses to the employer;
3. The employer claims compensation to the employees, and the provisions of the labor contract or the rules and regulations formulated according to law are used as the basis for the claim.
The three elements are indispensable and the claim may be supported.
5. How to determine the amount of compensation
Civil compensation follows the principle of loss offset, but the nature of compensation in labor disputes is different from civil compensation. In such incidents, the employer has both dual identities, on the one hand, victims, on the other hand It is the manager of the laborer. Even if the worker is at fault or gross negligence, he or she can only combine the laborer’s fault level, income level, and the amount of damage caused to the unit. The laborer is required to bear a small part of the liability for compensation. Most of the damage is still borne by the employer. Many cases issued by the Supreme People's Court hold this view, such as:
Case 1: The amount of compensation is 30% of the annual income of the employee
In the case of the “Labor Disputes Disputes between Zhang and a Tourism Company in Nanjing” handled by the Nanjing Intermediate People’s Court published by the Supreme People’s Court on May 29, 2013, the court’s opinion was that the employer gave the employer If the economic loss is caused, the employer may agree to the liability of the employee, but the "contract" cannot completely waive its responsibility. In this case, Zhang is a car driver hired by a travel company. This position has a high-risk character. This “contract” is a good excuse for the company's business risks, but the risk is passed on to the workers. The court ruled that the agreement on the loss all borne by Zhang should be invalid. However, the invalidity of the agreement does not mean that Zhang should not be liable for compensation at all, and he did cause the loss of the company because of his fault. In the end, the court took into account Zhang’s actual income and determined that the amount of compensation company was 30% of its annual income, totaling more than 5,000 yuan.
Case 2: The amount of compensation is 20% of the unit loss amount
The selected case published in the Supreme People's Court Newspaper on December 29, 2016, “Chongqing No. 1 Intermediate People's Court Judgment Su Hong Company v. Zhang Xiaoping and Huang Linglin Labor Dispute Case”, the court's opinion of the court held that: in the process of performing duties, If the person violates the relevant provisions of the labor contract and causes economic losses to the employer, the laborer shall bear the corresponding compensation liability according to the fault size, and according to this, the two laborers shall bear a total of 20% compensation, and each person shall bear 10%. The proportion of responsibility.
Case 3: The court decides at its discretion
The selected case published in the Supreme People's Court Newspaper on December 21, 2017, "Jiangsu Wuxi Intermediate People's Court sentenced a large hotel in Wuxi to suing a certain three-person labor contract dispute case", the court's opinion of the court held that: Whether the laborer’s own reasons for causing economic losses to the employer shall be liable for compensation. The Labor Law and the Labor Contract Law lack clear provisions on this, but the employer may follow the labor contract’s agreement and the rules and regulations established according to law. In the case of deducting compensation, the scope of compensation shall be in line with the worker's fault size and salary income level, and the court shall award compensation of 5,000 yuan.
Lawyer reminded:
In the case that the legal provisions are not perfect, the employer may stipulate or stipulate the specific treatment methods for the employees to cause losses to the company through labor contracts and rules and regulations formulated according to law, but at the same time, pay attention to the rationality of the corresponding clauses. It is not possible to exclude employee rights, increase employee obligations, and blame the existence of risks that are considered invalid.
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