typical case
Jiang joined a demolition company in Shanghai in June 1995 1 1. Both parties signed the labor contract from 1 99965438+1October1,and finally renewed it to June 65438+February 3, 2008/. From June 65438+ 10/day, 2006, the monthly salary of ginger was adjusted from 2000 yuan/month to 50000 yuan/year. On June 65438+1 October1day, 2007, Jiang signed a labor contract with the company, stipulating that Jiang would be the assistant to the general manager, with an annual salary of 50,000 yuan, 90% in advance and 10% after the year-end assessment. On June 65438+ 10/day, 2008, both parties signed the labor contract from June 65438+1 day to June 65438+February 3 1 day, 2008. It is agreed that Jiang's basic salary will be paid according to the actual situation, but the annual salary is not agreed. From June 2008 to April 2008, Jiang's monthly salary was 2994.60 yuan, 3274.60 yuan, 2994.60 yuan and 2994.60 yuan respectively.
During his tenure as assistant to the general manager, Jiang also served as the producer and auditor of the company's employee salary payment schedule, and was also the specific agent for paying social insurance premiums. On June 23, 2007,165438+1October 23, Shanghai Pudong New Area Social Insurance Management Center issued a rectification notice to the company because the company's original declaration of the total income of urban insured workers was inconsistent with the audit conclusion of the total annual salary of urban insured workers. Among them, the average monthly wage income of Jiangyuan is 4 166 yuan, and the adjusted average monthly real wage income is 3,895.90 yuan. The company paid the social insurance premium for Jiang in 2007 and 2008 from 1 to May 2008 according to 4 166 yuan/month. However, in addition to the above salary, the company paid the year-end bonus of 40,000 yuan to Jiang on June 5438, 2006+200710.0, March 2007/kloc-0.0/50,000 yuan, and June 5438+/kloc-0.0/0.0.30 million yuan.
On May 13, 2008, Jiang dissolved the labor relationship between the two parties in writing on the grounds that the company failed to pay social insurance premiums according to law. Jiang said that his "failure to pay social insurance premiums according to law" means that the company did not pay social insurance premiums in full during 2007-2008.
Referee result
The focus of this case lies in whether the company should pay economic compensation to Jiang for canceling the labor contract with the company because the company failed to pay the social insurance premium in full.
On May 28th, 2008, Jiang applied to Shanghai Pudong New Area Labor Dispute Arbitration Committee for arbitration, demanding that the company pay economic compensation of 78,765,438 yuan +04 yuan for the termination of labor relations. The Committee's ruling does not support Jiang's appeal. Jiang refused to accept the appeal and appealed to the Pudong New Area People's Court, which also rejected Jiang's claim.
case analysis
(1) Failure to pay social insurance premiums in full is generally not the object of adjustment in the Labor Contract Law.
There are many phenomena of "non-payment", "underpayment" and "deferred payment" by employers, and the interests of workers are seriously violated. In these three cases, if the employee terminates the labor contract with the employer according to the provisions of Item 3, Paragraph 1, Article 38 of the Labor Contract Law, does the employer need to pay economic compensation to the employee according to the provisions of Item 1, Article 46 of the Labor Contract Law? There are two completely different views on this. One view is that "failure to pay", "failure to pay in full" and "failure to pay in time" are all "failure to pay according to law". Therefore, in these three cases, when the employee terminates the labor contract with the employer, the employer must pay the employee economic compensation; Another view is that "failure to pay according to law" in Item 3 of Paragraph 1 of Article 38 of the Labor Contract Law should be strictly controlled as "failure to pay", and "failure to pay in full" and "failure to pay in time" should not be included. Only if the employer fails to pay social insurance for the employee, and the employee terminates the labor contract with the employer accordingly, the employer shall pay the employee the economic compensation for the termination of the labor contract.
At present, the second view is also adopted in Shanghai's judicial practice. For example, the Shanghai Higher People's Court's Opinions on Several Issues Concerning the Application of the Labor Contract Law (No.73 [2009] of the Shanghai Higher People's Court) clearly points out that it is the basic obligation of the employer to pay labor remuneration and social insurance premiums to workers according to law.
However, the calculation standards of labor remuneration and social security fund are often complicated in practice. If the employer violates the good faith, thus delaying payment or refusing to pay, it is the object of legislative regulation. Therefore, if the employer fails to pay the labor remuneration in full and on time due to subjective malice, it can be used as the reason for the laborer to terminate the contract. However, due to objective reasons, the calculation standard is unclear and controversial, which leads to the employer's failure to pay the labor remuneration in full and on time or the social security fund, which cannot be used as the basis for the laborer to terminate the contract. It can be seen that this opinion of the Shanghai Higher People's Court actually relaxes the control of the employer and reduces the opportunity for the employer to pay economic compensation.
(two) the legal responsibility for not paying in full and on time is to pay back in accordance with legal standards.
Paying social insurance premiums in full and on time is the basic obligation of the employer. If the employer fails to pay the social insurance premium in full and on time, the employee may file a labor dispute settlement procedure and ask the employer to pay the difference according to the legal standard.