A Study On The Claim Of Workers' Compensation In The Period Of Wrongful Dismissal

The request to get payment from employer during the illegal dismissal is one of specific embodiment of postpone pay off system in the labor contract law.Once the dismissal action is considered illegal,the employer is put into the situation of the postpone pay off.The right toget payment from employer is based on the nature of labor service,the limitation of dismissal employee and those policies to protect labors.From the perspective of comparative law,in some countries,the General obligation law consists of the terms of postpone pay off,and the term of labor contract exists in the specific provisions.The request to get payment can be obtained derive from the general and specific relationship between labor contract and employment.Besides,the same conclusion can be obtained from unscrambling those policies to protect labors regardless of no clear provision in some countries.After confirming the right of getting payment due to the illegal dismissal,for those saving costs occurs due to employee cannot to provide service to employer in illegal dismissal period such as transportation allowance,the benefit employee gains from working for other employer,and the potential benefit happens in this period,how to deduct these numbers and determine a reasonable amount cannot be done by a simple way,the related regulations of undue benefit and offset benefit need to be considered.Local legal departments response to the request of gaining payment because of illegal dismissal differently due to there is no unified provision.there is even the different trial result for the same cases,which affect the unity,justice of law and did not reflect the nature of law to protect labor right.There is insufficient provision for such issue,and this cannot be fixed by the methodology of hermeneutics.For sake of providing the instruction and meet the needs of labor's request,the law related with postpone pay off and employment contract should be established.The law should include practical solutions to prevent different judgment on similar case.In that way,the labor's request and the purpose of protecting labor can be realized.