Encountered Illegal Workers Dismissed For Nearly 50 Thousand Yuan.

　　 [case introduction]

The complainant entered the prosecution unit in April 16, 2007 and the labor contract expires until April 15, 2008. The two sides agreed to pay 6500 yuan / month after tax. In July 10, 2007, because the complainant reflected too much overtime to the accused, the accused was dismissed by oral method, and the defendant returned the procedure for the complainant in July 13, 2007.

The complainant was born in September 30, 2006 and was breastfed during the labor relations.

The complainant holds that the defendant has unilaterally terminated the labor contract with the complainant on the grounds that the complainant reflects too much overtime. He has no legal basis, and the complainant is still in the lactation period and should not be relieved of the labor contract according to law. Therefore, the following arbitration request is submitted:

1, request a ruling to revoke the defendant's decision to terminate the labor relationship with the complainant and resume the labor relations between the two parties.

2, the defendant is required to reissue all wages from July 1, 2007 until the date of resumption of labor relations (according to the standard of 6500 yuan / month after tax).

3, the defendant is required to pay the working day from April 16, 2007 to July 10, 2007, and the overtime pay is 11011 yuan, and the overtime fee is 11884 yuan for the two-day weekend.

The respondent pleaded that the complainant had no evidence to prove that the defendant had proposed to rescind the labor contract. In fact, the complainant had absenteeism from July 10, 2007, and the defendant never knew that the complainant was in lactation period, so he did not agree to resume labor relations, nor did he agree to reissue wages. The labor contract between the two parties clearly stipulates that the complainant practices the irregular working system, so the complainant does not have to pay the overtime wage of the complainant. Request to reject all claims of the complainant.

　 [lawyer's opinion]

As the principal attorney of the complainant, this lawyer has made the following principal opinions in response to the company's defence opinions:

1. The case is the defendant's dismissal of the complainant without reason, so the labor relationship between the two sides should be resumed. The reasons are as follows.

First of all, the fact that the defendant released the labor relations with the complainant in July 13, 2007 is a fact. In spite of the fact that the plaintiff himself left the Department in July 10, 2007, the defendant did not provide any evidence to prove it. According to the interpretation of the Supreme People's Court on Several Issues concerning the application of law in labor dispute cases (Law 2001 [14] thirteenth), the article clearly stipulates that the employer shall bear the burden of proof as a result of the decision of the employer to expel, remove, dismiss, rescind the labor contract, reduce labor remuneration, and calculate the working life of workers. Therefore, proving the burden of proof of the complainant's resignation should be in the accused, but the defendant has no definite evidence to prove that the complainant is leaving on his own. Therefore, it should be presumed that the defendant had dismissed the complainant without reason.

Secondly, even if the defendant has mentioned that the complainant has absenteeism since July 10, 2007, he still has only 3 days' absenteeism for up to July 13th, and the defendant has not provided evidence to prove that his rules and regulations are similar to that of "continuous absenteeism and 3 days' dismissal". National laws and regulations also have no "laborers' continuous absenteeism 3 days' units can be dismissed" and other similar provisions. Therefore, the plaintiff has no legal basis for the employment contract with the complainant on the 3 day of the continuous absenteeism of the complainant, and there is no basis for the enterprise's own rules and regulations.

Again, in July 13, 2007, the complainant was still in lactation period, and the company could not terminate labor relations with the complainant without any reason.

Based on the above three reasons, the respondent has the obligation to resume labor relations with the complainant and to reissue all the salaries from July 1, 2007 to the date of resumption of labor relations.

Two, the fourth labor contract of the two parties (1) stipulates that the stipulations of the irregular working hour system are invalid in violation of the law, and the defendant shall pay overtime according to the actual attendance of the complainant. The reasons are as follows.

First, the thirty-ninth provision of the labor law stipulates that enterprises can not implement the thirty-sixth and thirty-eighth provisions of this law because of the characteristics of production, and other work and rest methods can be implemented through the approval of the labor administrative department. This is the requirement of the legal system for the implementation of the irregular working system, that is, the premise must be "approved by the labor administrative department". Moreover, the Shanghai municipal labor and Social Security Bureau issued the "examination and approval procedures for the implementation of the irregular working system and the comprehensive calculation work hour system" by the labor and Social Security Bureau of Shanghai Municipality (Shanghai labor insurance Fufa (2006) 40) clearly stipulates the examination and approval method of the irregular working system. However, the so-called "irregular working system" carried out by the accused has never been approved by the labor administrative department without authorization, which is obviously a violation of the law.

According to labour law "Article eighteenth provides that: the following labor contracts are invalid: (1) violation of laws and administrative regulations of the labor contract; (two) fraud, threats and other means of labor contracts. An invalid labor contract is not legally binding from the time it is concluded. If the labor contract is partially invalid, the remaining part will remain valid if it does not affect the validity of the rest. The invalidity of a labor contract shall be confirmed by the labor dispute arbitration committee or the people's court.

Therefore, both sides Labor contract As for the violation of the provisions of the law, the agreement for the implementation of irregular working hours should be considered invalid. The defendant should pay overtime according to the actual attendance of the complainant.

Secondly, if permitted The labor and capital If the two sides can implement the irregular working system through their own agreement, they will give employers the obligation to avoid paying overtime fees, which will damage the dignity of the law. In order to get a job, laborers often have to swallow the illegal demands of employers, and have to choose to accept them. In this way, illegal activities of employers will be encouraged. What is more serious is that the labor law requires the employer to pay overtime pay obligations, which will become a mere scrap of paper, because any company can avoid the obligation to pay overtime by way of unscheduled work with the workers.

To sum up, the defendant made verbal dismissal of the complainant in July 10, 2007, and in July 13, 2007, he did not have any factual and legal basis for the complainant to cancel the labor relations formalities. He should revoke and resume the labor contract with the complainant in accordance with the law. The irregular working system prescribed by the accused is illegal and invalid because it has not been examined and approved by the labor administrative department according to law, so it should pay the complainant's overtime wages and 25% of the economic compensation according to law.

[arbitration result]

The labor dispute arbitration committee of a district of Shanghai has fully supported our view and decided to recover the labor relationship between the respondent and the complainant, and reissued the wages from July 1, 2007 to the date of the actual resumption of labor relations (calculated by 6500 yuan / month after tax) totaling about 26000 yuan. At the same time, it was decided that within three days from the date of the decision of the defendant's self determination, the complainant's working day and the two-day weekend overtime payment would amount to more than 23000 yuan.

The defendant has not filed a lawsuit within 15 days after receiving the award, and the award is now in force.