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I sued my school - and won
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kungfuman



Joined: 31 May 2012
Posts: 1749
Location: In My Own Private Idaho

PostPosted: Mon Sep 11, 2017 2:18 pm    Post subject: I sued my school - and won Reply with quote

It's official. My school didn't offer a new contract to me and wouldn't pay me severance pay as outlined under Chinese Labor Law article 39.

I asked them several times to compensate me and they wouldn't even respond.

I hired a labor lawyer and the lawyer got me a settlement.

The settlement was to my advantage and the lawyer only cost me 3000y.

So foreigners - you DO have a voice and rights. DON'T let your school push you around and DON'T let them make you think they have total control over you and your employment.

The lawyer told me that most things schools put in their contracts are illegal and unenforceable but most foreigners are ignorant of the law and too scared to fight for their rights.

Hopefully this post enlightens others to protect themselves.

And I post this cause I got the money in my bank.
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Foo_Fighters_Dave



Joined: 09 Dec 2016
Posts: 162

PostPosted: Mon Sep 11, 2017 5:29 pm    Post subject: Reply with quote

Congratulations! How long did it take for you to get back your money from the beginning (hiring a lawyer) to winning and getting a settlement?
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rioux



Joined: 26 Apr 2012
Posts: 825

PostPosted: Mon Sep 11, 2017 9:53 pm    Post subject: Reply with quote

What's the name of the school?
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getbehindthemule



Joined: 15 Oct 2015
Posts: 700
Location: Shanghai

PostPosted: Tue Sep 12, 2017 12:05 am    Post subject: Re: I sued my school - and won Reply with quote

Well done! I think we all need a better understanding of Chinese labor law!!
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Alien abductee



Joined: 08 Jun 2014
Posts: 527
Location: Kuala Lumpur

PostPosted: Tue Sep 12, 2017 12:20 am    Post subject: Re: I sued my school - and won Reply with quote

kungfuman wrote:
The lawyer told me that most things schools put in their contracts are illegal and unenforceable but most foreigners are ignorant of the law and too scared to fight for their rights.

First of all, congratulations. It puts to rest the notion that a foreigner can never win a case against a Chinese employer. I'm guessing the reason most people who have a grievance never go to court is because armchair "lawyers" on forums like this keep saying "you can never win."

kungfuman wrote:
It's official. My school didn't offer a new contract to me and wouldn't pay me severance pay as outlined under Chinese Labor Law article 39.

Are you sure about the article? When I search Article 39 this is what I found.

Quote:
Article 39 If an enterprise is unable to implement the provisions of Article 36 and Article 38 due to its particularitise of production, it may introduce other systems of work upon approval of the labour administrative department.

Back to the part I quoted from your post, your Chinese lawyer said most things schools put in contracts are illegal and unenforceable? I've read my contract from back to front, and I don't see much, if anything, that looks unfair or illegal. Breach penalty is a possibility, but apparently nobody ever pays those anyway. Omissions? My contract says nothing about severance pay. Is that illegal? Please elaborate on what your lawyer told you.
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OhBudPowellWhereArtThou



Joined: 02 Jun 2015
Posts: 1168
Location: Since 2003

PostPosted: Tue Sep 12, 2017 6:42 am    Post subject: Reply with quote

I think that part of the problem is a language barrier. FTs don't know where to turn for help, and the Chinese whom they know who speak English (e.g., students and Chinese teachers) don't know where to find a lawyer.

Another barrier to finding representation is a matter of timing. Some schools have a tendency to give the FT the bum's rush on the last day of the semester so he doesn't have time to seek counsel.

But Congrats, kungfuman!
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kungfuman



Joined: 31 May 2012
Posts: 1749
Location: In My Own Private Idaho

PostPosted: Tue Sep 12, 2017 3:07 pm    Post subject: Re: I sued my school - and won Reply with quote

Alien abductee wrote:
kungfuman wrote:
The lawyer told me that most things schools put in their contracts are illegal and unenforceable but most foreigners are ignorant of the law and too scared to fight for their rights.

First of all, congratulations. It puts to rest the notion that a foreigner can never win a case against a Chinese employer. I'm guessing the reason most people who have a grievance never go to court is because armchair "lawyers" on forums like this keep saying "you can never win."

kungfuman wrote:
It's official. My school didn't offer a new contract to me and wouldn't pay me severance pay as outlined under Chinese Labor Law article 39.

Are you sure about the article? When I search Article 39 this is what I found.

Quote:
Article 39 If an enterprise is unable to implement the provisions of Article 36 and Article 38 due to its particularitise of production, it may introduce other systems of work upon approval of the labour administrative department.

Back to the part I quoted from your post, your Chinese lawyer said most things schools put in contracts are illegal and unenforceable? I've read my contract from back to front, and I don't see much, if anything, that looks unfair or illegal. Breach penalty is a possibility, but apparently nobody ever pays those anyway. Omissions? My contract says nothing about severance pay. Is that illegal? Please elaborate on what your lawyer told you.


No one's contract says anything about severance pay - it's THE LAW under Chinese labor law. If you are terminated or your contract is not renewed then by law they must pay you one month's salary for every year you have worked. For Chinese and Laowai.

The lawyer told me there are 5 conditions on obtaining severance pay - or exclusions to it. Like you can't be fired for misconduct and expect to get severance pay.

The lawyer sent me all the conditions to my wechat so I have to look on there and see if I can post it later.

Just so you know every city has labor lawyers - the trick is finding one who will help you and not take advantage of you. I felt paying 3000y was far.
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Elicit



Joined: 12 May 2010
Posts: 235

PostPosted: Wed Sep 13, 2017 1:35 am    Post subject: Reply with quote

Congrats Kungfuman. Well done!

I'll spread the word and personally strike a blow for workers' rights if the need ever arises.
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auchtermuchty



Joined: 05 Dec 2009
Posts: 344
Location: Beijing

PostPosted: Wed Sep 13, 2017 11:47 am    Post subject: Reply with quote

You can also get severance if you are offered a new contract but it is on different terms to the previous ones, and you choose not to accept it.
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The Great Wall of Whiner



Joined: 29 Jan 2003
Posts: 4946
Location: Blabbing

PostPosted: Thu Sep 28, 2017 9:28 am    Post subject: Reply with quote

Very nicely done.
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kungfuman



Joined: 31 May 2012
Posts: 1749
Location: In My Own Private Idaho

PostPosted: Fri Sep 29, 2017 1:30 am    Post subject: Reply with quote

From beginning to end it took just a few weeks as the lawyer gave me two options - she files a case with the court - takes more time and cost me more money - or she tries to negotiate.

She said if she files a case I will win cause they are 100% in the wrong however I need pay her more. She didn't specify how much more and I didn't ask.

Option two - she negotiates a settlement. Quicker and I get $$$ sooner.

I gave her a go ahead for option two knowing I could always say no to a settlement.

She sent me a message a few days later saying how's 50,000y. I said sure.

She and the school drew up papers, she checked them, I went to the school alone and read them in English and signed.

School paid me 50,000 y into my account.

End of story.

School also assisted me in closing the social insurance account and retrieving the funds. There was about 10,000y in the account. I got it all.

The lawyer based my case on Chinese Labor law section 39 but I forgot the specifics.
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Osiry



Joined: 19 Mar 2015
Posts: 84
Location: Nanjing

PostPosted: Wed Nov 28, 2018 1:34 am    Post subject: Reply with quote

kungfuman wrote:
From beginning to end it took just a few weeks as the lawyer gave me two options - she files a case with the court - takes more time and cost me more money - or she tries to negotiate.

She said if she files a case I will win cause they are 100% in the wrong however I need pay her more. She didn't specify how much more and I didn't ask.

Option two - she negotiates a settlement. Quicker and I get $$$ sooner.

I gave her a go ahead for option two knowing I could always say no to a settlement.

She sent me a message a few days later saying how's 50,000y. I said sure.

She and the school drew up papers, she checked them, I went to the school alone and read them in English and signed.

School paid me 50,000 y into my account.

End of story.

School also assisted me in closing the social insurance account and retrieving the funds. There was about 10,000y in the account. I got it all.

The lawyer based my case on Chinese Labor law section 39 but I forgot the specifics.


Hi Kungfuman,

Just wondering if you know where exactly this article that stipulates this is. I am in a similar situation at the moment, my employer wants to make some crazy changes for my new contract and I don't really want to accept, so I'd like to print something out and take it into a meeting to show that I'd need to be paid out unless they maintain my current contract.
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Osiry



Joined: 19 Mar 2015
Posts: 84
Location: Nanjing

PostPosted: Thu Nov 29, 2018 8:41 am    Post subject: Reply with quote

I've done some research, and have discovered the relevant articles that you'll need when pursuing your rights to severance pay.

Chapter 4, articles 36 - 50 of the 'Labor Contract Law of the People's Republic of China' contain all relevant information that you'll need to take to your employer.

Here's a link to the document in English.

http://www.npc.gov.cn/englishnpc/Law/2009-02/20/content_1471106.htm
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isitts



Joined: 04 Jun 2010
Posts: 186
Location: Korea

PostPosted: Mon Dec 10, 2018 4:18 am    Post subject: Reply with quote

rioux wrote:
What's the name of the school?

I'd rather know the name of the lawyer. Smile
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AnneSansTete



Joined: 26 Jun 2012
Posts: 47

PostPosted: Sat Jan 12, 2019 8:40 am    Post subject: Re: I sued my school - and won Reply with quote

kungfuman wrote:
It's official. My school didn't offer a new contract to me and wouldn't pay me severance pay as outlined under Chinese Labor Law article 39.

I asked them several times to compensate me and they wouldn't even respond.

I hired a labor lawyer and the lawyer got me a settlement.

The settlement was to my advantage and the lawyer only cost me 3000y.

So foreigners - you DO have a voice and rights. DON'T let your school push you around and DON'T let them make you think they have total control over you and your employment.

The lawyer told me that most things schools put in their contracts are illegal and unenforceable but most foreigners are ignorant of the law and too scared to fight for their rights.

Hopefully this post enlightens others to protect themselves.

And I post this cause I got the money in my bank.


Does the severance pay apply if the employee chooses not to renew the contract?

TIA,

Anne
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