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kungfuman
Joined: 31 May 2012
Posts: 1749
Location: In My Own Private Idaho
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 Posted: Mon Sep 11, 2017 2:18 pm Post subject: I sued my school - and won |
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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
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| Posted: Mon Sep 11, 2017 5:29 pm Post subject: |
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| 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: 880
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| Posted: Mon Sep 11, 2017 9:53 pm Post subject: |
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| What's the name of the school? |
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getbehindthemule
Joined: 15 Oct 2015
Posts: 712
Location: Shanghai
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| Posted: Tue Sep 12, 2017 12:05 am Post subject: Re: I sued my school - and won |
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| 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
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| Posted: Tue Sep 12, 2017 12:20 am Post subject: Re: I sued my school - and won |
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| 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.
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| 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
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| Posted: Tue Sep 12, 2017 6:42 am Post subject: |
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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
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| Posted: Tue Sep 12, 2017 3:07 pm Post subject: Re: I sued my school - and won |
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| 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: 244
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| Posted: Wed Sep 13, 2017 1:35 am Post subject: |
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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
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| Posted: Wed Sep 13, 2017 11:47 am Post subject: |
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| 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
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| Posted: Thu Sep 28, 2017 9:28 am Post subject: |
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| Very nicely done. |
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kungfuman
Joined: 31 May 2012
Posts: 1749
Location: In My Own Private Idaho
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| Posted: Fri Sep 29, 2017 1:30 am Post subject: |
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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 $$$ sooner.
I gave her a go ahead for option two knowing I could always say no to a settlement.
She sent me a message a few days later saying how's 50,000y. I said sure.
She and the school drew up papers, she checked them, I went to the school alone and read them in English and signed.
School paid me 50,000 y into my account.
End of story.
School also assisted me in closing the social insurance account and retrieving the funds. There was about 10,000y in the account. I got it all.
The lawyer based my case on Chinese Labor law section 39 but I forgot the specifics. |
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Osiry
Joined: 19 Mar 2015
Posts: 84
Location: Nanjing
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| Posted: Wed Nov 28, 2018 1:34 am Post subject: |
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| kungfuman wrote: |
From beginning to end it took just a few weeks as the lawyer gave me two options - she files a case with the court - takes more time and cost me more money - or she tries to negotiate.
She said if she files a case I will win cause they are 100% in the wrong however I need pay her more. She didn't specify how much more and I didn't ask.
Option two - she negotiates a settlement. Quicker and I get $$$ 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
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| Posted: Thu Nov 29, 2018 8:41 am Post subject: |
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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: 193
Location: Korea
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| Posted: Mon Dec 10, 2018 4:18 am Post subject: |
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| rioux wrote: |
| What's the name of the school? |
I'd rather know the name of the lawyer.  |
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AnneSansTete
Joined: 26 Jun 2012
Posts: 47
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| Posted: Sat Jan 12, 2019 8:40 am Post subject: Re: I sued my school - and won |
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| 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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