Little compensation for illegal foreign employment
http://www.dongguantoday.com/     08/02/2012 10:15

In June 2007, a French ("plaintiff") gained the work permit and worked in a Chinese company. Later, he hopped to another Chinese company ("respondent") without changing the information in the work permit. In June 1, 2008, the plaintiff went back to France to extend the work visa but was rejected. The respondent terminated the labor contract with the plaintiff on the ground that the visa was no longer valid. The plaintiff filed a petition in court, claiming 75,000 Yuan for the salary for June, July and August and 25,000 Yuan for indemnity. The respondent argued that though employment relationship existed, the plaintiff, instead of the respondent, should change his information on the work permit.

The court ruled that as the information in the work permit was unchanged, it could not prove the plaintiff worked for the respondent legally. No labor relationship but service relationship was established between the plaintiff and the respondent, thus labor law is inapplicable to this case but civil law. Considering both the plaintiff and the respondent were negligent to change the information in the work permit, it is held by the court that the respondent shall pay the plaintiff with 11,494.25 Yuan.

This case is alert to foreigners in that no labor relationship but service relationship was held by the court due to lack of a valid work permit. According to applicable law, a precondition of legal foreign employment is the work permit. Without it, the foreign employment is illegal. If the plaintiff changes his information in the work permit, he has a valid one, which would prove he is a legal employee of the respondent. The respondent as an employee would be liable for the salary and indemnity of contract termination. Compared with the responsibility of legal employment, the respondent took much less responsibly in illegal employment, which is a clear loophole in Chinese laws. It is advisable the foreign employee should gain a valid work permit before the loophole is shut.

(This information is provided by Lawyer Kelly Xie from Guangdong KaiTong Law Firm in friendship. It is not any legal opinion or legal grounds addressed to any organization or individual. For inquiry, please contact Kelly via email at Kelly_xie@ktlf.com.cn or by phone on 13926185641.)

来源:News GD     Editor:谭晶