Unspecified Probationary Period, Adverse Consequences, Unit Commitment

In September 1, 2013, Qian Mou entered a technology company, the two sides only signed a probation agreement, agreed that Qian's probation period began in September 1, 2013, but did not specify the probation period.

Since then, the two sides have not signed any labor contracts.

In February 26, 2014, Qian Mou appealed to the court and asked the unit to pay the double wage difference which did not sign the labor contract.

In the court trial, Qian argued that the actual probation period was 2 months, which was revised in November 1, 2013.

Technology companies argue that the probationary agreement is the nature of the labor contract.

The longest is up to 6 months, so Qian is still in the probation stage.

After hearing the case, the court held that under the circumstances that the probation period was not clear, the technology company should bear the burden of proof for the probation period as the party who bears the responsibility of management in the process of labor employment.

The court accepted the proposition that Qian had a probationary period of 2 months.

From November 1, 2013 to February 26, 2014, due to the fact that the technology company did not sign a labor contract with Qian, it should pay to him.

Of

Difference.

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In July last year, Zhang went to a construction company to work as a laborer. The two sides agreed to pay 2800 yuan per month, but they never signed a written labor contract.

On the evening of October 22nd, Zhang was injured in a collision with a car on his way home from work and died after hospital treatment.

In September of this year, Zhang's father, Zhang's son and Zhang's wife applied for an arbitration application to the local labor and personnel dispute arbitration committee, requesting a construction company to pay two times the wage of 4853 yuan without signing a written labor contract with Zhang.

In the end, the Arbitration Commission supported the claim of two times the salary of Zhang's relatives.

Why do the close relatives have the right to claim two times the salary of the written labor contract before their death?

From the point of view of labor legislation, the labor contract law, mediation and Arbitration Law and other related laws all regard "protecting the legitimate rights and interests of workers" as the fundamental purpose of their legislation, and promote the use of human rights by law to fulfill the obligation of signing labor contracts, so as to protect the legitimate rights and interests of vulnerable groups.

Judging from the nature of the two times wage, the first paragraph of the eighty-second clause of the labor contract law stipulates: "when the employing unit has been working for more than 1 months from the date of its own employment for less than 1 years, it has not signed a written labor contract with the laborer. It should pay two times the monthly salary to the laborer."

We can clearly see from the articles of law that the composition of the two times wage has a dual nature. The first rate of wages should be the remuneration of the labourers, and second times the wage is the punitive damages payable to the employer in performing the statutory obligations within the statutory time limit.

In this case, a construction limited company failed to sign a written labor contract with Zhang. Its illegal activities directly resulted in the generation of two times wages and continued until the death of Zhang. The death of Zhang can only lead to the loss of his qualification as a laborer. However, the compensation that has been generated during the period of the existence of the principal qualification of the employee should be his legal personal property.

Judging from the main body of this case, according to the twenty-fifth provision of the labor dispute mediation and arbitration law, "workers die by their close relatives or agents to participate in arbitration activities."

In this case, Zhang's close relatives, as applicants, claim that the difference between the two times salary has a legitimate subject qualification.