★Nutshell
Mr He entered into an part-time labor contract with a Shanghai consultancy company from Jan 1, 2017 to Dec 31, 2017, in which provided that Mr He worked two hours a day as a cleaner to keep the office clean with a salary of 30 yuan per hour and the salary shall be paid every 15 days. Meanwhile, the contract provides that it is a part-time labor relationship during which either party can notice termination to the other party anytime, and the company need not to pay severance for no matter what reason.
The contract was fulfilled until the due date. And as the company is expanding, the company entered a full-time labor contract from Jan 1, 2018 to Dec 31, 2018 with Mr He due to the past performance with a salary of 3000 per month as a cleaner at standard working hour system.
On Dec 23, the company noticed Mr He that it would not extend the contract after the contract due on Dec 31, 2018, and it would pay the severance of one month salary Mr He thinks as he worked from Jan 1, 2017, the severance shall be calculated from 2017. Since no result is reached after negotiation, Mr He claimed to the labor arbitration to require an extra severance of 3000 yuan.
★Issue
The issue of this case is when part-time labor relation converted to full-time, shall the working years calculated accumulatively?
The company thinks the severance shall only cover the period of full-time employment,
Mr He thinks working years reflects the working time of the employee, as part-time is a form of employment provided by law, the working years shall be calculated accumulatively.
★Judgment
The labor tribunal ruled that the full-time employment began from Jan 1, 2018, to Dec 31, 2018, the company noticed termination and paid one-month salary as severance, which is in accordance with the law. Mr He’s claim has no legal base, therefore his claim is not supported.
★Comment by Lawyer Tang
This is a dispute on part-time labor relation.
Part-time employment is favored by many companies due to its flexibility and simplification on termination, but many mistakes happens when come to application.
The Labor Contract Law provides that part-time employment is a form of employment where the salary is calculated by hour and usually the employee shall not work over four hours and 24 hours every week in the same company. The hourly rate shall not below the local minimum wage and the settlement cycle shall not exceed 15 days.
As far as I am concerned, in realty, many company has the following flaws in employment, firstly, the hourly rate is be below the local minimum wage. In fact, since April 1, 2019, the local minimum wage in Shanghai is adjusted to 22 yuan per hour, excluding the social insurance on individual and company sides. Secondly, working over 4 hours per day and paid over 15 days. Many companies entered into part-time contract to avoid the legal binding of full-time employment, but the fulfillment is the same as full-time employment. It would cause many problems, and the employee has the right to confirm the full-time labor relation with the company. Thirdly, if the company does not pay the work-related injury insurance for the part-time employee, the company shall bear all the responsibility if any injury happens to the employee during working.
Besides, Art 71 of Labor Contract Law provides that either party can inform the termination to the other party in a part-time employment, and the employer will not pay severance to the employee. From this regulation, part-time employment is not entitled to working years, therefore Mr He’s claim is not supported.
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