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【Case】Without an Employment License, Only a service relationship is deemed between general manager and restaurant, not a employment relationship
2014-June-5 Source: Newsgd.com
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An American, Mr. X, was employed by Restaurant A as a general manager. After half a year, a dispute about whether it was demission or resign arose, and Mr. X filed a suit to the court asking the compensation for terminating the contract and the compensation for failure to conclude a employment contract in the amount of two times of the salary. Recently, Shanghai Y District People’s Court has made a decision, requiring Restaurant A to pay the service remuneration to Mr. X from 1st July to 17th July, in the total amount of RMB 10758.62, but rejecting other requests from Mr. X From the court’s points of view, since Mr. X is foreigner, he must have the Employment License and Employment Permit, and because he didn’t have these permission, he cannot be regulate by the labor law of PRC. In this case, Mr. X was working in Restaurant A, getting monthly remuneration, which indicates that there is a service relationship existing between Mr. X and the hotel. Even though Mr. X has gone back to America in the late of May, the hotel didn’t stop paying the remuneration until June, and therefore the service relationship between Mr. X and the Hotel didn’t terminate only because Mr. X was back to America. Not until Mr. Tu put forward his resign by email on 17th July, did their service relationship terminate. As a result, Restaurant A has to pay the service remuneration between 1st July and 17th July.

Remarks: Employment relationship is distinguished from service relationship, whereby the treatments are totally different.

(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.)

Editor: 张斯
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