律师入驻Concerning How the Dismissed Portion of a Labor Arbitration Should be Calculated
In the context of labor arbitration in China, an arbitration panel, often comprised of representatives from the employer, the employee, and a neutral third party (such as a government official or a lawyer), may rule in favor of partially dismissing an employee's claims. This means that the panel finds that the employee is entitled to some relief but not the full extent of what they requested.
The question then arises as to how the dismissed portion of the arbitration should be calculated. The approach to this calculation depends on the specific provisions of the arbitration decision and the applicable Chinese laws and regulations.
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Applicable Legal Framework
The legal framework governing labor arbitration in China primarily includes:
Labor Law of the People's Republic of China (2008) Labor Dispute Mediation and Arbitration Law of the People's Republic of China (2021) Provisions on Labor Arbitration by People's Courts (2014)
Methods of Calculation
In general, there are two main methods for calculating the dismissed portion of a labor arbitration:
1. Percentage Calculation: Under this method, the arbitration panel specifies a percentage of the employee's claims that are dismissed. For example, if an employee requests compensation of 100,000 RMB and the arbitration panel dismisses 30% of the claim, the dismissed portion would be 30,000 RMB.
2. Specific Amount Calculation: In this case, the arbitration panel directly states the specific amount of the claim that is dismissed. For instance, if an employee requests overtime pay of 20,000 RMB and the arbitration panel dismisses 5,000 RMB of the claim, the dismissed portion would be 5,000 RMB.
Factors Considered
When calculating the dismissed portion of a labor arbitration, the arbitration panel typically considers various factors, including:
The evidence presented by both the employee and the employer The applicable laws and regulations The precedent of similar cases The fairness and reasonableness of the decision
Implications of Dismissal
The dismissed portion of a labor arbitration has implications for both the employee and the employer. For the employee, it means that they will not receive compensation or other relief for the portion of their claims that was dismissed. For the employer, it signifies that they are not liable for the dismissed portion of the employee's claims.
Limited Judicial Review
It is important to note that judicial review of labor arbitration decisions is limited in China. The employee or employer can only apply to the people's court to set aside the arbitration decision on specific grounds, such as procedural irregularities or violations of the law.
Conclusion
The calculation of the dismissed portion of a labor arbitration in China is a complex process that requires careful consideration of the arbitration decision, the applicable laws and regulations, and the specific circumstances of the case. Both the employee and the employer should seek legal advice to ensure that their rights and interests are protected throughout the arbitration process.
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