This article introduces the labor arbitration mediation process and a small episode where a case had to be withdrawn and refiled due to a one-character difference, along with excerpts of relevant legal provisions for reference.
In the previous article, I mentioned that I filed a case with the Chaoyang District Labor Arbitration Court on February 18, 2021. At that time, I was told that "mediation" was a mandatory step. So, after filing, the next step was to wait for a mediation notice. In simple terms, mediation involves a mediator communicating with both parties in an attempt to reach an agreement. If an agreement is reached, both parties need to go to the Arbitration Court to sign the relevant documents. If some parties can reach an agreement through mediation, it means fewer cases proceed to the next steps, saving everyone trouble.
Eight days later, on February 26, I received a call from Ms. Yan, the mediator at the Arbitration Court. She said she had contacted the company, and the company's response was: "willing to pay the conditions negotiated during the previous layoff," that is, less than the N+1 standard. I didn't want to accept that. Since the layoff was already illegal, and the company wasn't afraid of me filing for arbitration—and I was also angered by the company's arrogant attitude at the time—now that I had already taken it to arbitration, I naturally aimed for the 2N for illegal layoffs.
Mediator Ms. Yan said, "You definitely can't get 2N. You can't get that much." I asked why, and the Arbitration Court said that to claim 2N, you need to prove the layoff was illegal, and your application should state "compensation for damages" (赔偿金) rather than "economic compensation" (补偿金). I asked, "Can I amend the application?" The answer was no, unless I withdrew the case and refiled.
Here, I'd like to remind everyone not to be careless. A one-character difference can render your application useless. If you want N+1, write "economic compensation of XX yuan." If the company illegally lays you off and you can claim 2N, you must write "compensation for illegal layoff of XX yuan." This can be seen in the labor law.
According to Article 46 of the Labor Contract Law: Under any of the following circumstances, the employer shall pay economic compensation to the employee: (1) the employee terminates the labor contract in accordance with Article 38 of this Law; (2) the employer proposes to terminate the labor contract in accordance with Article 36 of this Law and reaches an agreement with the employee on termination; (3) the employer terminates the labor contract in accordance with Article 40 of this Law; (4) the employer terminates the labor contract in accordance with the first paragraph of Article 41 of this Law; (5) except where the employer maintains or improves the conditions for renewal of the labor contract as agreed and the employee does not agree to renew, the employment contract with a fixed term is terminated in accordance with Item (1) of Article 44 of this Law; (6) the labor contract is terminated in accordance with Items (4) and (5) of Article 44 of this Law; (7) other circumstances provided by laws and administrative regulations.
After reading this article, we understand: "The company can lay off employees, but certain conditions must be met, and economic compensation must be paid." Note the term, it's "economic compensation." How much should be paid? According to Article 47 of the Labor Contract Law: Economic compensation shall be paid to the employee based on the number of years the employee has worked for the employer, at the rate of one month's salary for each full year worked. If the period is six months or more but less than one year, it shall be counted as one year; if it is less than six months, the employee shall be paid economic compensation equal to half a month's salary. If the employee's monthly salary is higher than three times the average monthly salary of employees in the region as published by the municipal people's government of the municipality directly under the Central Government or the city divided into districts where the employer is located for the previous year, the standard for payment of economic compensation shall be three times the average monthly salary of employees, and the maximum number of years for which economic compensation is paid shall not exceed 12 years. The monthly salary referred to in this Article is the average monthly salary of the employee in the 12 months preceding the termination or expiration of the labor contract. How is compensation paid for illegal termination? According to Article 48 of the Labor Contract Law: If the employer terminates or ends the labor contract in violation of the provisions of this Law, and the employee requests continued performance of the labor contract, the employer shall continue to perform it. If the employee does not request continued performance or the labor contract cannot continue to be performed, the employer shall pay compensation in accordance with Article 87 of this Law. Then Article 87 of the Labor Contract Law: If an employer terminates or ends a labor contract in violation of the provisions of this Law, it shall pay the employee compensation at twice the standard for economic compensation as specified in Article 47 of this Law. Combining these two articles shows: "Illegal layoffs require payment of twice the standard economic compensation for legal layoffs as specified in Article 47," which is where the term "2N" comes from.
OK, I've digressed. Let's return to our topic. The mediator said I couldn't claim 2N because I wrote "economic compensation" instead of "compensation for damages." Just one character made all the difference, and since the application couldn't be amended, I had to withdraw the case and refile.
I received the call from the Arbitration Court on February 26, a Friday, saying that if I wanted 2N, I'd need to withdraw and refile. The following two days were the weekend, so the court was closed. After the weekend, on March 1, 2021, I had a job interview in the morning, and in the afternoon I went directly to the Arbitration Court to withdraw the case and refile.
Withdrawing was straightforward. However, when I said I wanted to refile, I was told I needed to get a new number. But when I went to get a new number, the front desk said there were no numbers left for the afternoon—only morning numbers were available. It was only 3 PM! How could there be no numbers with so much time left in the afternoon? I was frustrated, but that was the rule. They wouldn't care how far you traveled or how long you took the subway to get there; no numbers were available in the afternoon (because the morning numbers were enough to keep them busy until they left at 5:30 PM on the dot—unlike internet companies that work overtime to handle massive demand).
The next day, March 2, 2021, in the morning, I went to the Chaoyang District Labor Arbitration Court and refiled. By then, I was familiar with the process. Actually, even though I couldn't file the day before, I didn't waste time—I rewrote the application. This time, I took a number and submitted it directly. The process was the same: initial review window, photocopying, arbitration filing window, signing, collecting materials, and leaving. Only this time, I didn't say an extra word to the staff inside—I had already learned my lesson from the previous rebuff.
This time, there was no "mediation" step. When filing, I told the staff, "Last time you told me I had to go through mediation. Now that mediation has failed, I withdrew and refiled with additional content. This time, I won't mediate."
After receiving the filing materials from the staff, I left. Next came waiting to "submit evidence." I knew this would be another long wait—maybe a month, maybe three months. It certainly wouldn't be fast...