This article introduces the interlude of labor arbitration mediation and the need to cancel the case and reopen the case due to a difference of one word, and extracts relevant legal provisions for reference.
In the previous article, I introduced that I went to the Chaoyang District Labor Arbitration Dispute Court to file a case on February 18, 2021. At that time, I was told that I had to go through the "mediation" step, so the next step after filing the case was to wait for the mediation notice. In fact, mediation is: the mediator communicates with both parties in an attempt to get both parties to reach an agreement. If an agreement is reached, both parties need to go to the Dispute Court to sign the relevant agreement. If some people can reach an agreement through mediation, it means that fewer cases will go to subsequent steps and everyone will be saved trouble.
8 天之后的 2 月 26 日，我收到了争议院调解员严某的电话，她说她跟公司联系了，公司方面的给出的结果就是：愿意支付之前裁员时候协商的条件也就是少于 N+1 的标准。我不想接受，既然都违法裁员了，既然公司不怕我仲裁，而我当时也被公司嚣张的态度所激怒，且都已经走向仲裁这一步了，当然是要违法裁员的 2N 了。
Mediator Yan said: "You definitely can't get 2N, you can't get that much." I asked why, but the Dispute Court said that if you want 2N, you need to prove that it is illegal layoffs, and your application should read "compensation" instead of "compensation". I asked: Can I amend the application? The other party said: No. Unless you withdraw and reopen the case.
Here, I would like to remind everyone by the way, don't be careless, it will be useless if you miss one word. If you want N +1, you can write "Economic compensation XX yuan"; if it is illegal layoffs by the company, you can ask for 2N, you have to write "Illegal layoffs compensation XX yuan". We can see this in the labor law.
According to Article 46 of the Labor Contract Law: The employer shall pay financial compensation to the worker under any of the following circumstances: (1) The worker terminates the labor contract in accordance with the provisions of Article 38 of this Law;(2) The employer proposes to terminate the labor contract to the worker in accordance with the provisions of Article 36 of this Law and resolves the labor contract through consensus with the worker;(3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law;(4) The employer terminates the labor contract in accordance with the provisions of paragraph 1 of Article 41 of this Law;(5) Except for the case where the employer maintains or improves the terms stipulated in the labor contract to renew the labor contract, and the worker does not agree to the renewal, terminating the fixed-term labor contract in accordance with the provisions of Article 44, Paragraph 1 of this Law;(6) Terminating the labor contract in accordance with the provisions of Items 4 and 5 of Article 44 of this Law;(7) Other circumstances stipulated by laws and administrative regulations.
看完这一条，我们明白：公司可以裁员，但是需要满足一些条件，且需要给经济补偿金注意这个词，是经济补偿金。那么给多少呢？那么根据《劳动合同法》第四十七条： 经济补偿按劳动者在本单位工作的年限，每满一年支付一个月工资的标准向劳动者支付。六个月以上不满一年的，按一年计算；不满六个月的，向劳动者支付半个月工资的经济补偿。 劳动者月工资高于用人单位所在直辖市、设区的市级人民政府公布的本地区上年度职工月平均工资三倍的，向其支付经济补偿的标准按职工月平均工资三倍的数额支付，向其支付经济补偿的年限最高不超过十二年。 本条所称月工资是指劳动者在劳动合同解除或者终止前十二个月的平均工资。那么公司违法解除的，赔偿金怎么给呢？根据《劳动合同法》第四十八条 用人单位违反本法规定解除或者终止劳动合同，劳动者要求继续履行劳动合同的，用人单位应当继续履行；劳动者不要求继续履行劳动合同或者劳动合同已经不能继续履行的，用人单位应当依照本法第八十七条规定支付赔偿金。再看《劳动合同法》第八十七条 用人单位违反本法规定解除或者终止劳动合同的，应当依照本法第四十七条规定的经济补偿标准的二倍向劳动者支付赔偿金。这两条结合一起说明：违法裁员需要支付第四十七条规定的合法裁员经济补偿标准的2倍,也就是我们所说的 2N 的由来。
OK, that's too far. Back to our theme, the mediator said that I couldn't ask for 2N because I wrote compensation instead of compensation, but it was just one word difference but it was completely different. Then the application could not be revised, so I had to cancel the case first and then reopen the case.
Since I received a phone call from the Arbitration Court on February 26, saying that if I wanted 2N, I had to cancel the case and reopen the case. This day happened to be Friday, and the next two days were weekends, and the Dispute Court was not working. After the weekend, it will be March 1, 2021. On this morning, I had an interview, and in the afternoon, I went directly to the Dispute Court to revoke the case and reopen the case.
It was easy to revoke, but when I revoked and said to reestablish it, I was told that I needed to retrieve the number again. When I went to retrieve the number again, the front desk said that there was no number. There was no number in the afternoon, only in the morning. It's only 3 o'clock at this time! There is still so long in the afternoon, how can there be no number? I am helpless, but the rules are like this. They don't care how far you come from or how long you take the subway to get here. Anyway, there is no number in the afternoon (Because the number in the morning is busy enough until the afternoon, people have to get off work on time at 17:30. Unlike Internet companies, in order to cope with the numerous needs, programmers and testers work overtime together to digest the tasks).
The next day, March 2, 2021, in the morning, I came to the Chaoyang District Labor Arbitration Dispute Court to reopen the case. I am already familiar with filing a case by this time. In fact, I was not allowed to file a case yesterday, and I was not idle either. I wrote a new application form and directly submitted the number when I came. It's still the experience: calling the number at the preliminary trial window of the case, copying, calling the number at the arbitration filing window, signing, taking back the materials, and then leaving. However, this time, I won't say a word to the staff inside. After all, I have been shut down last time.
There were no "mediation" steps to file the case this time. When I filed the case, I told the staff: Last time you told me that I had to go through "mediation", but now our mediation failed. I canceled the case and re-filed the case to add some content. This time I will not mediate.
从工作人员那里拿回立案材料之后，我出门了。后面，就是等待提交证据了。我知道这也将是一个漫长的等待，也许 1 个月，也许 3 个月，反正肯定快不了……