问题 问答题 案例分析题

王某于2008年9月1日进入某房地产公司工作,签订了为期三年的劳动合同,合同约定工资为每月5000元。工作期间王某表现良好,每年均享受加薪待遇。至2011年王某月薪已经涨为9000元,但劳动合同中关于劳动报酬的条款一直未作变更。8月份,劳动合同到期前,公司找王某谈话,询问其是否愿意与公司续订劳动合同,待遇与原劳动合同一致(即工资仍为每月5000元)。

王某当即表示不同意公司续约条件,月工资应当为9000元。双方未能就续订劳动合同的事项达成一致。8月31日,合同到期后,公司终止了双方的劳动关系。王某要求公司支付其经济补偿,但公司认为是王某不同意公司的续约要求而导致双方未能续订劳动合同,不应该支付王某经济补偿。

公司不支付王某经济补偿的理由是否成立?为什么?

答案

参考答案:

公司不支付王某经济补偿的理由不成立。理由如下:

《劳动合同法》规定,用人单位与劳动者协商一致,可以变更劳动合同约定的内容。变更劳动合同,应当采用书面形式。

但不能简单理解为任何没有采用书面形式的“变更”行为都是无效或者不存在的。

王某的实际月工资已经变更为9000元,双方均无异议,并一直实际履行至今,对这一已实际履行的变更行为应当承认其合法效力,应当视为双方劳动合同内容之一。

《劳动合同法》规定,除用人单位维持或者提高劳动合同约定条件续订劳动合同,劳动者不同意续订的情形外,用人单位终止固定期限劳动合同的,应当支付劳动者经济补偿。

这里的“维持或者提高劳动合同约定条件”不能机械理解为书面劳动合同约定的内容,在上述案例中“劳动合同约定条件”应当是指王某变更后的月工资9000元,而不是指书面劳动合同约定的5000元。

因此,公司提出的续订条件月工资5000元明显低于“劳动合同约定条件”,在此情形下王某不同意续订劳动合同是完全合理的,公司在这种情况下终止双方劳动合同应当支付经济补偿。

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Passage Three

One of Microsoft’s cool people, is Patrick Blackburn. As a test manager for the Product Group, Blackburn’s job may sound routine; however, he says it’s anything but that.
"Most people ,think of software testing as a mundane task of punching the keyboard like a monkey, trying to break the program," Blackburn says. "Part of that is true, but we write software programs called Monkeys to do that for us so that we don’t have to hire real monkeys. Real monkeys are too difficult to manage and don’t usually pass the personal hygiene criteria !" In reality, Blackburn says, testing responsibilities are very technically challenging and often include complete development cycles of their own. He spends most of his time coming up with creative incentives to convince his team to believe in schedules for products that don’t yet exist, hiring great people to build p teams, and pounding on the products to find bugs before the customer sees them.
According to Blackburn, the most critical thing you can do to succeed at Microsoft is to focus on what you believe is important. "It’s easy to get overwhelmed with everything going on around you, so first and foremost you need to stay focused," he says. "What you focus on needs to be something you firmly believe in so that you’ll pursue it and defend your mission with a passion. "
He also thinks that one of the biggest differences between his co-workers at Microsoft and those at his former workplace is the sense of ownership and the impact on the business that everyone shares. "We hire people who tend to become personally attached to the products and the success of the company, and the environment really perpetuates this," Blackburn says. "It’s much easier to motivate a team at Microsoft than any other company I’ve been in. "
One of the most difficult parts of Blackburn’s job is staying ahead of the people who report to him. "Because there are so many smart people and technology is changing so quickly, it is a constant challenge to keep up," he says. "I hope that’s because I hire such great people!"
To succeed, Blackburn uses time management tactics and allocates a specific amount of time to education. "My personal goal is to spend at least 20 percent of my time learning new things through formal and informal methods. "

According to Patrick Blackburn, what it takes to succeed at Microsoft is ______ .

A.focusing on something that you firmly believe in

B.getting overwhelmed with everything going on around you

C.coming up with creative incentives to convince other people

D.cooperating with great people in a p team