Workplace: Plus No Overtime, Who Has The Final Say?

After resigning from a company, Wang asked the company to pay overtime during weekends and holidays.

In the course of the court hearing, the company, as the defendant, put forward "who advocates the proof" and asked Wang to submit relevant evidence for his overtime work.

However, Wang can only submit salary slips and witness testimony of his colleagues, proving that he has indeed worked overtime, such as attendance records and other evidence in the hands of the company, but the company is not willing to provide.

From a realistic perspective, there are many difficulties in giving workers evidence of overtime.

In many units, there is no written evidence in overtime form, and overtime is often reflected in wages, punch card records, etc.

However, the evidence is kept in the hands of employers.

There is no way to get it.

Therefore, although the principle of distribution of burden of proof in civil procedure law is "who advocates who gives evidence", the seventh provision of the Supreme People's Court on the evidence of civil litigation stipulates that when the law does not specify the provisions, and in accordance with the provisions and other judicial interpretations, the burden of proof can not be determined, the people's court can determine the burden of proof based on the principle of fairness and honesty and credibility, and the ability of the parties to give evidence.

This means that in the allocation of the burden of proof in overtime, the employer should generally consider the evidence of the specific working hours of the workers, and the employer should bear the relevant facts.

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However, it is obvious that it is unreasonable for employers to bear the fact that the burden of proof is against them.

At the same time, many workers advocate overtime for a long time. If they require the employer to provide corresponding evidence, it will be too unfavorable for the employer.

Therefore, in the judicial interpretation of labor disputes, the Supreme People's court has clearly stipulated the issue of the burden of proof for overtime work: "workers who claim overtime pay should bear the burden of proof on the fact of overtime.

However, the workers have evidence to prove that the employer is in possession of the evidence of overtime facts, and the employer does not provide the employer with adverse consequences.

Labourers are in a disadvantaged position in labor dispute cases. Taking into account the practical difficulties of workers' burden of proof, the burden of proof can not be overly strict on workers' evidence, and the burden of proof can be lightened appropriately. As long as the workers' basic evidence, such as attendance sheet, overtime notice, wage slip, handover record and witness testimony, can be proved to be overtime, it can be regarded as the burden of proof.