Foreigner Without Work Permit Brings Employer to Court!

Source: JobTube, Arianna J., Lina (Lawyer), Josh B.

Its known that having a work permit is first-thing-first for foreign employees, which is supposed to be handled by the Chinese employer rather than its actual owner. However, what if the employer hasn't started or finished the work permit, during the termination of labor, and where economic disputes are involved?

Years ago, there was a court case regarding this, which was widely covered by Chinese media.

The Case

After having an interview in Seoul with the vice president of a Chinese company, Ms. Kim, a Korean, accepted the job offer from the company which was based in Beijing, and focused on the IT industry. As both sides agreed, the company would employ Kim as a web designer for 3 years with a monthly salary of 12,000 Yuan, and provide her a work visa.

On September 1st, 2011, Kim joined the company but did not get any labor contract. She was paid 20,158 Yuan till November 25th when fired over through a phone call.

As for her salary, the company refused to pay for November and deducted her five-day wages for September.

Kim chose to safeguard her interests through legal means. To prove their labor relationship, Kim managed to offer the evidence of her work including e-mails, photos, and even persuaded a former co-worker to testify for her in court.

What the foreign employee claimed:

Kim believed that the company deceived her from day one, and did not provide her with a work visa or a labor contract. Additionally, they unilaterally terminated the contracted, still owed her money, which caused her to have a great economic loss. Thus, she claimed:

(1) A total amount is 42,200 Yuan for salary, including the double salary of the non-signed labor contract from September to November 2011; five-day salary deducted in September and monthly salary in November 2011; severance compensation and overtime pay.

(2) Compensation for the loss of 12,000 Yuan for air tickets, rent and visa caused by the violation of the contract;

(3) The company to pay a compensation fee for competition restriction of 60,000 Yuan from December 2011 to May 2012.

What the Court Ruled:

After the hearing, the tribunal held that the evidence provided by Kim could be interrelated to each other, thus confirming that she did provide work in the company. Also, during which, the employer denied the facts, without providing any evidence. Due to this, the court decided to accept the evidence that was given by Kim.

At the same time, disputes between foreigners and employers shall be settled by the Labor Contract Law, which requires the foreigner to obtain a work permit. However, Kim did not have an employment permit. Therefore, the dispute should be settled in accordance with the labor contract.

In the end, the court decided that the company should pay Kim more than 15,000 Yuan for the five-day salary of September and salary of November.

However, because there was no agreement on the economic compensation for the restriction of competition in the Agreement on Intellectual Property Rights, Confidentiality and Non-Competition that was signed by both parties, Kim's request for it had no legal basis and was not supported.

Kim's other requests are not supported because of lack of legal basis.

\n