No Labor Contract Enterprises Pay Two Times The Salary Of Employees In One Year

In the past seven years since the promulgation and implementation of the labor contract law, the reform has deepened and the market economy has entered a new normal. With the emergence of various new labor disputes, labor dispute trials are facing new situations, new problems and new challenges. Reporters recently interviewed in the intermediate people's Court of Xiamen City, Fujian Province, learned that there were various types of labor dispute cases concluded in the past two years, but the proportion of employers losing the lawsuit was still very high.

In November 2013, A De entered the Xinyuan Hotel as a kitchen worker. The two sides did not sign a written labor contract. Xinyuan Hotel did not pay social insurance for A De. A De resigned in August 6, 2014. He then applied to the Xiangan Labor Arbitration Commission of Xiamen municipality to request the order to terminate its labor relations with Xinyuan Hotel. The Xinyuan Hotel paid the social insurance premium for November 5, 2013 to August 5, 2014, paid two times the salary of 30600 times the written labor contract in the same period, and added 34000 yuan to the compensation. Labor Arbitration Commission verdict: both sides Labor relations Since August 6, 2014, Xinyuan Hotel has paid A De the above period. Two times wages The difference is 27200 yuan, dismissing A De's other claims.

After that, both sides refused to accept the ruling and filed it with the people's Court of Xiangan district. litigation 。 The court of Xiangan district decided that the labor relations between the two sides should be terminate, Xinyuan Hotel paid A De two times the difference of salary 27200 yuan, and handled and paid the social security for A De during the above period.

Xinyuan Hotel appealed against the first instance judgment to the Xiamen intermediate people's court. Xinyuan Hotel appeals that it has been catering services to Ho Mou management, direct payment of the contract fee to Ho Mou, so it does not exist with the fact of labor relations with A De, there is no wage situation for A De, should not pay two times the wages, do not need to apply for social security.

Xiamen intermediate people's court held that A De worked in the kitchen of Xinyuan Hotel. The work is an important part of Xinyuan Hotel's business. A De wears the work card of Xinyuan Hotel, checking attendance by Xinyuan Hotel's attendance check equipment, and also pays wages from Xinyuan Hotel's finance. There is another legal relationship between Xinyuan Hotel and other people's work on the kitchen work. Therefore, the original trial decided that there was no improper labor relationship between Xinyuan Hotel and A De. The eighty-second provision of the labor contract law stipulates that "if the employer fails to conclude a written labor contract with a worker for more than one month after the day of his own employment, he shall pay the laborer two times the monthly salary." A De has entered Xinyuan Hotel since November 5, 2013, and the hotel has not signed a labor contract with him in nearly a year. Therefore, Xinyuan Hotel should pay two times the wage difference of A De's above-mentioned deadline.

The Xiamen intermediate people's court rejected the appeal of Xinyuan Hotel and upheld the original judgment.