Injury Claims For Men Who Fail To Sign Labor Contracts Are "Turning The Tables On Them".

The man did not sign a labor contract, and the industrial injury claim was "defeated by defeat". After hearing the court, the court held that the evidence submitted by Guo, such as work clothes, meal tickets, surveillance video, and other evidence, could prove that he worked in a technology company of the plaintiff, and then he could identify that he had a labor relationship with a plaintiff and a technology company.

Recently, the Xuecheng District People's court tried to determine a case of labor dispute. The court finally held that there was a labor relationship between a plaintiff and a defendant company.

In the case, Guo has worked in a technology company since March 2013, but has not written in writing.

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After that, the company refused to recognize the existence of labor relations on the grounds of no employee name list.

Therefore, Kwok applied for arbitration to the labor dispute arbitration committee of Xuecheng District, Zaozhuang, and the Arbitration Commission decided to confirm the existence of the defendant Guo and a technology company.

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The company refused to accept and was sued to the Xuecheng court.

During the trial, defendant Guo submitted the words "a technology company electric car" printed in court.

And a restaurant ticket printed with the words "restaurant of a technology company" submitted a traffic accident at the north gate of the company. The surveillance video recorded by the traffic police department showed that the defendant Guo was out of the company on the same day.

A plaintiff or a technology company asserted that there was no defendant Guo Mou in the roster of the company's employees but did not submit his employee list. His claim contradicted the fact that Guo Mou was working in his company in the arbitration trial. It violated the principle of good faith litigation, and refused to accept the claim that there was no labor relationship between him and the defendant Guo, and confirmed that there existed labor relations between the two sides.

The judge who handled the case said that the second provision of the Ministry of labor and social security on the establishment of labor relations related matters stipulates that employers can not sign labor contracts with laborers. They can refer to certificates of identity issued by the employer to the laborers, and prove that there are labor relations between the two parties. Therefore, workers can provide "work permits" and "service cards" when they can not submit written labor contracts, so as to prove the existence of labor relations.

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Chen went to work in a network technology company in Shanghai in September 1, 2012, and the two sides signed a labor contract for 2 years.

Due to the nature of the work, Chen often has overtime work in his daily work.

The company pays overtime wages according to the law.

In August 31, 2014, when the labor contract was expired, the company decided not to renew the labor contract with Chen and pay two months' economic compensation.

Chen has objection to the company's elimination of overtime pay in the calculation of compensation, and has applied for arbitration to the labor dispute arbitration committee after failing to negotiate with the company, requiring the company to give full financial compensation.

The focus of this case is: how to determine the base of economic compensation?

Chen believes that the base of economic compensation should include all the wage income in the 12 months before the termination of the labor contract, including overtime pay.

The company believes that: when calculating the base of Chen's economic compensation, the company calculates the monetary income of all normal working hours, such as wages, bonuses, allowances and allowances, within 12 months before the termination of the labor contract, but does not include overtime pay, which is in conformity with the law.

The labor dispute arbitration committee held that after the expiration of the contract, the employer did not renew the labor contract with Chen, resulting in the termination of the labor contract between the two parties. The employer should pay the economic compensation for the termination of the labor contract according to the provisions of the labor contract law.

The employer has paid two months' economic compensation in accordance with the law. Chen asked the employer to calculate the overtime compensation when calculating the base of the economic compensation. The request for making up the economic compensation is not supported by law.

This case is the issue of the calculation of the basis for the dissolution of labor contracts and the termination of economic compensation. The focus is on whether overtime wages should be calculated in the base of economic compensation.

After the promulgation and implementation of the labor contract law, the employers and employees are particularly concerned about the issue of economic compensation, especially when the labor contract expires, and the employer does not renew the labor contract. It still has to pay the economic compensation. This is a new rule.

Whether the calculation base of the economic compensation should include overtime pay, the labor contract law and the labor contract law implementation regulations are not clear.

As a result, there are differences in practice, but most of the wage income in Shanghai area is calculated in the 12 months before the employee leaving, including overtime pay.

But this caliber has changed in 2013. The Shanghai Higher People's court has clearly stipulated in the first phase of the 2013 question and answer on the application of civil law whether the overtime pay should be included when calculating the base of the economic compensation.

The Shanghai municipal high court thinks: "first, economic compensation, in terms of the nature, is the compensation for the laborers' compensation after the termination or termination of labor relations between employers and workers, so the economic compensation should be based on the normal working hours of the workers.

Second, overtime wages are paid by laborers for extra labor, and are not within the normal working hours.

Third, from the fifty-fifth opinions of the Ministry of labor on the implementation of some issues concerning the labor law of the People's Republic of China and the twenty-seventh provisions of the regulations on the implementation of the labor contract law, it should also be considered that the economic compensation does not include overtime pay.

To sum up, we believe that overtime pay should not be included when calculating the base of economic compensation. "

Therefore, according to the provisions of the above Shanghai high court, the employer should not include overtime pay when calculating the economic compensation for the termination and termination of the employee's labor contract.

However, we should pay attention to the fact that if the employer has maliciously regarded the income that should be included in the normal working hours into the overtime wage, so as to reduce the standard of normal working hours and economic compensation, the "overtime pay" should be included in the calculation base of the economic compensation.