SPOILER ALERT!
Units drop employee files. Four types of losses can be claimed.txt
Author: Source: Labor afternoon newspaper
Employee files are lost by the unit, and with it comes the inability to go through retirement procedures, not take pleasure in the pension in time, and also permanently irreparable losses as a consequence of the inability to replace the employee files. If workers suffer these series of losses, how need to they protect their rights? The best way to claim damages? The following situations deliver a extra productive approach for workers to shield their rights.
If the files are lost, retirement can't be carried out, and direct losses will have to be compensated
【Case】
Liu Li joined a tourism organization inside a district in 1982 and was transferred in the corporation to the service center of its subsidiary in September 1987. When the firm was restructured in March 2007, Liu Li left her job immediately after leaving office to function separately, and the enterprise did not spend her social security contributions.
In March 2010, Liu Li, who had reached retirement age in 6 months, found the original firm and requested to renew the pension insurance coverage and health-related insurance coverage. Even though the business agreed to handle it, but stressed that her files had been lost, the enterprise claimed that her files had currently been transferred and could not go through any formalities such as retirement. Inside the 5 years due to the fact then, Liu Li has been unable to resolve the appeal.
In March 2016, Liu Li was told to the court, taking the original firm because the case, and asked the company to order it to make up for employee files and retirement procedures, and to compensate much more than 200,000 yuan in pension and medical insurance coverage losses for 5 years soon after reaching the retirement age.
The court held that although the defendant enterprise advocated transferring its files to Liu Li’s perform unit once more, but failed to supply evidence to prove it, it need to bear the burden of proof, so he ruled that the enterprise ought to complete the employee files and retirement procedures for Liu Li, and compensate Liu Li’s five-year pension along with other financial losses amounted to more than 160,000 yuan.
【Comment】
Liu Li's personnel files have already been kept by a travel enterprise. Liu Li left to function in other units, however the two parties did not go through the relevant procedures for transfer or resignation. As Liu Li's personnel file keeping unit, he can't offer enough proof of Liu Li's file transfer and related files, so it must be determined that Liu Li's personnel file was lost by the firm. Consequently, it needs to be liable for the actual financial losses triggered by the loss of Liu Li's personnel files.
Loss of files leads to shrinkage of seniority
【Case】
In May 1965, Chen entered a factory within a city and worked till June 1989. Following leaving the job, he became a freelancer and paid pension insurance by himself.
In 2005, 60-year-old Chen began to delight in pension insurance therapy. Nevertheless, his pension is only a lot more than 1600 yuan. Because the retirement positive aspects have been significantly much less than the pension revenue of his peers, he went to the Municipal Labor and Social Security Bureau for enquiries.
Following enquiry, he discovered that because the original perform unit has not transferred his files so far, his operating years just before the basic pension social pooling will not be regarded because the years of payment. The lack of those years naturally causes his pension insurance coverage to become paid to the factory in the identical time. There are actually a great deal of personnel missing.
Chen believes that the explanation for the failure to transfer his files is the fact that the original factory lost its files, as well as the factory needs to be accountable for the fault. So he filed a lawsuit within the court.
Considering that Chen’s lost files could no longer be processed, the court decided to compensate Chen’s economic loss of 75,000 yuan by comparing the difference among the pensions of Chen’s personnel within the very same situation.
【Comment】
The employer has the obligation to keep and hand over the file components from the staff and workers. When the unit fails to provide Chen’s file components or the voucher for handing more than the file materials, it shall be presumed that it has not fulfilled its corresponding obligations.
Mainly because Chen didn't have the corresponding file materials, his functioning years before the social pooling with the employee’s basic old-age insurance can't be regarded because the years of payment, which led towards the distinction in between his pension and the employees who entered the factory at the identical time. Compensate for the actual losses brought on by Chen.
Loss of files need to be replaced, and compensation for mental harm ought to not be much less
【Case】
Wang is usually a contract employee of a county highway bureau. After joining the operate in 1977, he worked inside the bureau till he left in 2004. In January 2016, before approaching retirement, Wang Mou, who was about to turn 60, went towards the personnel division of the Highway Bureau to verify his files so that you can learn his retirement age. However the highway bureau gave him the answer: In 2002, the unit accidentally lost its files throughout the relocation method.
Soon after quite a few unsuccessful negotiations with all the unit, Wang Mou appealed to the relevant departments. Unsatisfied together with the option to the problem offered by the relevant division, he sued towards the court in September 2017, requesting that the Highway Bureau be ordered to supplement the files and compensate 70,000 yuan for numerous losses.
In view on the reality that Wang has not retired, although the loss of his files by the Highway Bureau did not essentially bring about financial losses, just after all, it brought on physical and mental harm to him, and it may be determined that this matter has triggered significant psychological damage to Wang. He then sentenced the defendant to create up the file for Wang Mou and pay him 5000 yuan for mental damages.
【Comment】
When a unit loses employee files, it cannot be measured solely as direct financial loss, simply because it also constitutes an infringement on the compound nature of employees.
Article 7 from the 'Archives Law' stipulates: 'The archival institutions or archival employees of organs, organizations, enterprises, institutions along with other organizations are responsible for maintaining the archives of their very own units, and supervising and guiding the archival work of their affiliated institutions.'
It can be observed from this that government agencies, enterprises and institutions would be the obligatory custodians of employee files, and people that have not fulfilled their storage obligations should bear legal duty. In the identical time, referring for the relevant regulations of your personnel file management approach, the employee personnel file is really a comprehensive history with the employee's function efficiency, believed development history, moral style, and ability overall performance. recover data from pendrive of its content has personality content material. For that reason, the attribute of its suitable belongs for the character correct, which has the traits of reputation right and identity appropriate. It can be a compound character suitable. Consequently, within the case of employees devoid of actual financial loss, the unit need to also bear the corresponding compensation for mental damage.
Social security arrears can't be repaid, and can be claimed in accordance with the typical pension standard
【Case】
He Renhuai joined a machinery manufacturing restricted liability business on January 1, 1995, and also the company never ever paid him a social security deposit. After the implementation in the Labor Contract Law in 2008, the organization and He Mou signed a labor contract with an indefinite period and began to pay social security contributions for it.
He Renhuai reached the legal retirement age on May 20, 2015. Since June 2015, the organization has stopped paying social security charges along with other expenses. But till He Renhuai retired, the business had not paid him the pension insurance coverage cash prior to 2008.
Immediately after retiring, He Renhuai failed to acquire the full quantity of pension, in addition to a plaintiff brought the original company to court, requesting the enterprise to become compensated for its financial loss of 200,000 yuan.
The court went to the Municipal Human Sources and Social Safety Bureau for investigation in accordance with its powers. The response was: He Renhuai had reached the legal retirement age and could not undergo the procedures for producing up for the fundamental pension insurance for urban enterprise employees before January 2008.
Soon after pendrive data recovery , He Renhuai has retired to the age of 75 years old, and his pension insurance coverage treatment can cause harm of far more than 320,000 yuan as a result of the company's fault. Nonetheless, the compensation claimed by his lawsuit was only 200,000 yuan, so the firm was awarded a compensation of 200,000 yuan.
【Comment】
The retirement pension benefits of laborers are impacted by variables for example their operating years, retirement time, payment amount, and policy modifications. It truly is hard to accurately define the particular losses.
He Renhuai sued the claimed 200,000 yuan loss and failed to supply a reasonable calculation technique. The court refers towards the local typical pension normal for retired personnel in 2015, and immediately after calculation, the loss of pension insurance remedy after reaching the legal retirement age to 75 years and 15 years needs to be far more than 320,000 yuan. On the other hand, it only claims far more than 200,000 yuan, and the court according to the principle of 'not paying attention', that's, the court can not exceed the litigation claims in the parties and make a judgment beyond its power, and can only assistance 200,000 yuan.
Prosecutor Yang Xueyou
Employee files are lost by the unit, and with it comes the inability to go through retirement procedures, not take pleasure in the pension in time, and also permanently irreparable losses as a consequence of the inability to replace the employee files. If workers suffer these series of losses, how need to they protect their rights? The best way to claim damages? The following situations deliver a extra productive approach for workers to shield their rights.
If the files are lost, retirement can't be carried out, and direct losses will have to be compensated
【Case】
Liu Li joined a tourism organization inside a district in 1982 and was transferred in the corporation to the service center of its subsidiary in September 1987. When the firm was restructured in March 2007, Liu Li left her job immediately after leaving office to function separately, and the enterprise did not spend her social security contributions.
In March 2010, Liu Li, who had reached retirement age in 6 months, found the original firm and requested to renew the pension insurance coverage and health-related insurance coverage. Even though the business agreed to handle it, but stressed that her files had been lost, the enterprise claimed that her files had currently been transferred and could not go through any formalities such as retirement. Inside the 5 years due to the fact then, Liu Li has been unable to resolve the appeal.
In March 2016, Liu Li was told to the court, taking the original firm because the case, and asked the company to order it to make up for employee files and retirement procedures, and to compensate much more than 200,000 yuan in pension and medical insurance coverage losses for 5 years soon after reaching the retirement age.
The court held that although the defendant enterprise advocated transferring its files to Liu Li’s perform unit once more, but failed to supply evidence to prove it, it need to bear the burden of proof, so he ruled that the enterprise ought to complete the employee files and retirement procedures for Liu Li, and compensate Liu Li’s five-year pension along with other financial losses amounted to more than 160,000 yuan.
【Comment】
Liu Li's personnel files have already been kept by a travel enterprise. Liu Li left to function in other units, however the two parties did not go through the relevant procedures for transfer or resignation. As Liu Li's personnel file keeping unit, he can't offer enough proof of Liu Li's file transfer and related files, so it must be determined that Liu Li's personnel file was lost by the firm. Consequently, it needs to be liable for the actual financial losses triggered by the loss of Liu Li's personnel files.
Loss of files leads to shrinkage of seniority
【Case】
In May 1965, Chen entered a factory within a city and worked till June 1989. Following leaving the job, he became a freelancer and paid pension insurance by himself.
In 2005, 60-year-old Chen began to delight in pension insurance therapy. Nevertheless, his pension is only a lot more than 1600 yuan. Because the retirement positive aspects have been significantly much less than the pension revenue of his peers, he went to the Municipal Labor and Social Security Bureau for enquiries.
Following enquiry, he discovered that because the original perform unit has not transferred his files so far, his operating years just before the basic pension social pooling will not be regarded because the years of payment. The lack of those years naturally causes his pension insurance coverage to become paid to the factory in the identical time. There are actually a great deal of personnel missing.
Chen believes that the explanation for the failure to transfer his files is the fact that the original factory lost its files, as well as the factory needs to be accountable for the fault. So he filed a lawsuit within the court.
Considering that Chen’s lost files could no longer be processed, the court decided to compensate Chen’s economic loss of 75,000 yuan by comparing the difference among the pensions of Chen’s personnel within the very same situation.
【Comment】
The employer has the obligation to keep and hand over the file components from the staff and workers. When the unit fails to provide Chen’s file components or the voucher for handing more than the file materials, it shall be presumed that it has not fulfilled its corresponding obligations.
Mainly because Chen didn't have the corresponding file materials, his functioning years before the social pooling with the employee’s basic old-age insurance can't be regarded because the years of payment, which led towards the distinction in between his pension and the employees who entered the factory at the identical time. Compensate for the actual losses brought on by Chen.
Loss of files need to be replaced, and compensation for mental harm ought to not be much less
【Case】
Wang is usually a contract employee of a county highway bureau. After joining the operate in 1977, he worked inside the bureau till he left in 2004. In January 2016, before approaching retirement, Wang Mou, who was about to turn 60, went towards the personnel division of the Highway Bureau to verify his files so that you can learn his retirement age. However the highway bureau gave him the answer: In 2002, the unit accidentally lost its files throughout the relocation method.
Soon after quite a few unsuccessful negotiations with all the unit, Wang Mou appealed to the relevant departments. Unsatisfied together with the option to the problem offered by the relevant division, he sued towards the court in September 2017, requesting that the Highway Bureau be ordered to supplement the files and compensate 70,000 yuan for numerous losses.
In view on the reality that Wang has not retired, although the loss of his files by the Highway Bureau did not essentially bring about financial losses, just after all, it brought on physical and mental harm to him, and it may be determined that this matter has triggered significant psychological damage to Wang. He then sentenced the defendant to create up the file for Wang Mou and pay him 5000 yuan for mental damages.
【Comment】
When a unit loses employee files, it cannot be measured solely as direct financial loss, simply because it also constitutes an infringement on the compound nature of employees.
Article 7 from the 'Archives Law' stipulates: 'The archival institutions or archival employees of organs, organizations, enterprises, institutions along with other organizations are responsible for maintaining the archives of their very own units, and supervising and guiding the archival work of their affiliated institutions.'
It can be observed from this that government agencies, enterprises and institutions would be the obligatory custodians of employee files, and people that have not fulfilled their storage obligations should bear legal duty. In the identical time, referring for the relevant regulations of your personnel file management approach, the employee personnel file is really a comprehensive history with the employee's function efficiency, believed development history, moral style, and ability overall performance. recover data from pendrive of its content has personality content material. For that reason, the attribute of its suitable belongs for the character correct, which has the traits of reputation right and identity appropriate. It can be a compound character suitable. Consequently, within the case of employees devoid of actual financial loss, the unit need to also bear the corresponding compensation for mental damage.
Social security arrears can't be repaid, and can be claimed in accordance with the typical pension standard
【Case】
He Renhuai joined a machinery manufacturing restricted liability business on January 1, 1995, and also the company never ever paid him a social security deposit. After the implementation in the Labor Contract Law in 2008, the organization and He Mou signed a labor contract with an indefinite period and began to pay social security contributions for it.
He Renhuai reached the legal retirement age on May 20, 2015. Since June 2015, the organization has stopped paying social security charges along with other expenses. But till He Renhuai retired, the business had not paid him the pension insurance coverage cash prior to 2008.
Immediately after retiring, He Renhuai failed to acquire the full quantity of pension, in addition to a plaintiff brought the original company to court, requesting the enterprise to become compensated for its financial loss of 200,000 yuan.
The court went to the Municipal Human Sources and Social Safety Bureau for investigation in accordance with its powers. The response was: He Renhuai had reached the legal retirement age and could not undergo the procedures for producing up for the fundamental pension insurance for urban enterprise employees before January 2008.
Soon after pendrive data recovery , He Renhuai has retired to the age of 75 years old, and his pension insurance coverage treatment can cause harm of far more than 320,000 yuan as a result of the company's fault. Nonetheless, the compensation claimed by his lawsuit was only 200,000 yuan, so the firm was awarded a compensation of 200,000 yuan.
【Comment】
The retirement pension benefits of laborers are impacted by variables for example their operating years, retirement time, payment amount, and policy modifications. It truly is hard to accurately define the particular losses.
He Renhuai sued the claimed 200,000 yuan loss and failed to supply a reasonable calculation technique. The court refers towards the local typical pension normal for retired personnel in 2015, and immediately after calculation, the loss of pension insurance remedy after reaching the legal retirement age to 75 years and 15 years needs to be far more than 320,000 yuan. On the other hand, it only claims far more than 200,000 yuan, and the court according to the principle of 'not paying attention', that's, the court can not exceed the litigation claims in the parties and make a judgment beyond its power, and can only assistance 200,000 yuan.
Prosecutor Yang Xueyou
