Unpaid Labor Contract Units Double Pay

The unit failed to give evidence to prove entry time.

The case was examined by first instance and second instance.

The dispute between the two sides is the time of Chen's entry into a mold factory in Shenzhen and Chen Mou and a mold factory in Shenzhen.

According to the tenth provision of the labor contract law of the People's Republic of China, "a written labor contract shall be concluded in the establishment of a labor relationship.

Where a labor relationship has been established and a written labor contract has not been written at the same time, a written labor contract shall be concluded within one month from the date of the employment.

Where a labor contract is concluded between the employing unit and the laborer before the employment, the labor relationship shall be established from the date of the employment.

The first paragraph of the eighty-second paragraph of the law stipulates: "if the employer has not worked with a worker for a written labor contract for more than one month from the date of his own employment, he shall pay the laborer two times the monthly salary."

Therefore, a mold factory in Shenzhen should pay a salary equal to two times the salary of the labor contract from June 6, 2008 to November 24, 2008.

A mold factory in Shenzhen failed to give evidence to prove the wage distribution during the period, so the court made a monthly salary of 2000 yuan according to Chen's proposition.

A mold factory in Shenzhen should pay another 11034 yuan for that period to Chen.

Case replay

No labor contract signed with employees

Arbitral award double pay

Plaintiff (appellant): a mold factory in Shenzhen

Defendant (appellant): Chen Moumou

Before leaving, Chen Mou was a staff member of a mold factory in Shenzhen. In August 7, 2009, Chen resigned, leaving his salary from July 2009 to August. A mold factory in Shenzhen did not pay him.

The two sides should pay disputes over the wages of the company.

A mold factory in Shenzhen advocated Chen's entry into the factory in November 25, 2008, while Chen claimed his entry time was May 6, 2008.

At the same time, a mold factory in Shenzhen stated that the two sides signed a labor contract in November 25, 2008, from November 25, 2008 to November 25, 2010, and submitted a labor contract to confirm that the labor contract stipulate that the labor remuneration is 900 yuan / month.

Chen did not sign a written labor contract until March 2009 when he entered the office. In November 25, 2008, the two sides did not sign a written labor contract. The signature of Party B's "Chen Mou" was not his signature, but was forged by a mold factory in Shenzhen.

After leaving in August 7, 2009, Chen Mou applied for labor arbitration to the labor dispute arbitration committee, requesting a mold factory in Shenzhen to pay: 1, July 1, 2009 to August 7th wages 3040 yuan; 2, June 6, 2008 to February 28, 2009 did not sign labor contracts two times wage difference 18000 yuan.

In November 19, 2009, the labor dispute arbitration commission ruled that a mold factory in Shenzhen paid for Chen Mou in 2009, 3040 yuan in 2009 and 7 yuan in August, and a salary difference of 13200 yuan from May 6, 2008 to November 24, 2008.

A mold factory in Shenzhen refused to accept the arbitration award and filed a lawsuit with the court, requesting the court to order that the factory does not have to pay Chen Mou 7 yuan in 2009, 3040 yuan in August and two yuan in salary difference between May 6, 2008 and November 24, 2008, 13200 yuan.

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Referee result

Unsigned period

Double pay

The intermediate people's Court of Shenzhen decided in second instance:

First, a mold factory in Shenzhen should pay 3040 yuan to Chen Mou in July 2009 and August.

Two, a mold factory in Shenzhen should pay between June 6, 2008 and November 24, 2008 without signing a labor contract with another double wage of 11034 yuan to Chen.

Three, to reject Chen's other appeals.

How can I find no entry information?

Comic metaphor red

[judge's brief]

Ding Ting graduated from Xiamen University with a Bachelor of Laws degree.

Master of international law of Peking University, doctoral student of civil and commercial law of Wuhan University.

A number of legal papers have been published in provincial and municipal law journals.

Currently, the Shenzhen intermediate people's court is the chief judge of the sixth tribunal and the three judge.

Notes

Judge

Staff work experience from the unit to give evidence

In recent years, with the rapid establishment and development of the market economic system, the composition of labor relations has become increasingly complex. Labor disputes between workers and employers have occurred frequently. However, the problem of sharing the burden of proof in the current labor dispute cases has puzzled the handling of such cases.

The general procedure for the burden of proof is established in the Civil Procedure Law of the PRC.

The sixty-fourth provision of the act stipulates that the parties have the responsibility to provide evidence for their own claims, namely, the principle of "who advocates and who gives evidence" in the civil procedure.

It contains two aspects: first, the parties have the responsibility to provide evidence for their claims; the evidence is used to prove the truth of their claims; two, the claims of the parties can not be obtained in real time, and the legal responsibility is borne by them.

However, in labor dispute cases, if the burden of proof in general civil cases and the principle of general burden of proof distribution apply to a certain extent, it will cause difficulties for workers to give evidence, and it can not fundamentally reflect the legislative spirit of safeguarding the legitimate rights and interests of workers by labor law. It can not maintain the most basic fairness and justice in society, and can not safeguard the legitimate rights and interests of the disadvantaged party.

For this reason, the principle of inversion of burden of proof is part of the labor dispute cases, that is, workers do not bear the burden of proof, and the employer bears the burden of proof.

For labor dispute cases, the provision of inversion of burden of proof is found in the Supreme People's court's "provisions on civil litigation evidence" and the interpretation of several issues concerning the application of law in labor dispute cases.

The sixth provision of the "evidence on civil litigation evidence" stipulates that the employer shall bear the burden of proof in the labor dispute dispute case, because of the decision of the employer to expel, remove, dismiss, rescind the labor contract, reduce labor remuneration, and calculate the working life of the worker.

There are thirteenth provisions in the interpretation of several issues concerning the application of law in labor dispute cases.

For the purpose of this case, the employer shall bear the burden of proof on the working life of the workers according to the above provisions.

Therefore, the time of Chen's entry to a certain mold factory in Shenzhen should be confirmed by a mold factory in Shenzhen.

The entry registration form completed by the laborer during the entry period, and the staff register on the record of the relevant departments, can be used as a proof of the entry time of the laborers. Some wage tables show the entry time of the laborers, and the workers can confirm the signature, and the entry time recorded in the payroll can also be used as a basis.

In addition to the labor contract marked with the time of entry into the labour force, it is only the labor contract itself that can not be used as a basis for proving the entry time of the laborer without any other evidence.

According to the seventh provision of the labor contract law of the People's Republic of China, "the employer shall establish labor relations with the laborers from the date of their employment.

The employing unit shall set up a staff register for future reference. "

Therefore, a mold factory in Shenzhen should act as an employer, implement standardized management for every worker, set up personnel management files, and set up an employment list for enterprises.

A mold factory in Shenzhen can not provide Chen's entry registration form and other valid evidence that can prove Chen's entry time. The labor contract submitted by him as a single evidence can not prove Chen's entry time. Therefore, a mold factory in Shenzhen should bear the consequences of the inability to give evidence. On the one hand, the court accepted the entry time of Chen's assertion. On the other hand, a mold factory in Shenzhen assumed the legal liability of a two month salary for the labor contract in the next day after signing the employment contract for one month to the day before the labor contract was signed.

"The employer shall bear the burden of proof" when the labor dispute is decided by the employer, such as expulsion, delisting, dismissal, rescission of the labor contract, reduction of remuneration for labor, calculation of the working life of the worker, and so on, and the employer shall bear the burden of proof. "The employer shall bear the burden of proof" after the decision of the employer has made the expulsion, delisting, dismissal of the laborer and the termination of the labor contract signed with the laborer. The employer shall give evidence to prove the reasonability and legality of the decision, and whether the existence of the expulsion, removal, termination, termination of the labor contract or the termination of the facts of the facts of labor relations does not belong to the scope of the inversion of the burden of proof, and it should be dealt with according to the principle of "who advocates and who will give evidence". What needs to be said is "in the labor dispute dispute case".

Of course, for the existence of the initial burden of proof in labor relations between the two parties, it should be proved by a party who advocates the establishment of labor relations. It should submit relevant labor contracts or provide relevant evidence for payroll collection, social insurance, welfare benefits and work management.

When the worker has already presented evidence in the employing unit's labor, but the employer claims that the labor relationship is not established, the employer should submit a counter evidence.