Who Will Demonstrate The Overtime Pay?

According to

The Supreme People's court's interpretation of several issues concerning the application of law in labor dispute cases (three) is clear in article ninth: "workers who advocate overtime pay shall 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.

First, the fact that the fact of overtime does not apply to the inversion of burden of proof.

Because the person can not prove his own nothing, if the fact of overtime is included in the scope of the burden of proof and the evidence from the employer, when the employer does not provide overtime evidence or provide no evidence of denying the fact of overtime, it is presumed that the fact that the worker's overtime work is established is therefore lacking in legal basis, and it will also induce the laborer not to view the actual wage arbitrarily.

In practice, the workers who advocate overtime pay are often initially cited.

Secondly, considering the difference in the ability of employers and workers to close or master overtime evidence, the burden of proof can be lightened appropriately in the degree of proof.

As long as the preliminary evidence submitted by one of the workers can prove overtime facts, it can be regarded as the burden of proof has been completed.

The scope of proof can be attendance sheet, handover record, overtime notice, wages bar, witness testimony, etc.

Third, when the evidence of the fact that the worker has given evidence to work overtime is mastered by the employer, the burden of proof will be pferred to the employing unit after the proof is given, and the employer will not bear the adverse consequences.

Attention should also be paid to "

"The employer must record in writing the amount, time, name and signature of the worker, and keep it for more than two years," he said.

In practice, courts and arbitral organs can not be too strict with employers to retain evidence of overtime payment many years ago, but only require the employer to provide evidence for two years before the date of the dispute. Over this period, the burden of proof is allocated according to the principle of "who advocates and who gives evidence".

If the fact of dissolution is established, the employer shall bear the burden of proof for the type of resignation according to the interpretation of the Supreme People's Court on Several Issues concerning the application of law in labor dispute cases.

In the judicial practice, the relevant departments will examine who is going to lift the lifting, whether it is a lifting of the consultation between the two parties, or the unilateral rescission of the laborers, or the unilateral lifting of the employing units.

According to the present law, the employer shall notify the employing unit when he unilaterally terminates the work. If the worker fails to notify the employer to leave on his own, the employer may unilaterally terminate the disposal according to the worker's requirements.

In addition, the employer shall bear the responsibilities of labor management. Therefore, the burden of proof should be imposed by the employer if he proposes to lift the form and how to rescission it.

If the employer fails to provide proof of the fact that the worker resigns or leaves his job automatically, and does not give evidence on the termination of the labor contract in conformity with the legal provisions, it may be considered as an illegal termination of the labor contract by the employer.

If the employing unit violates the provisions of this law to terminate or terminate the labor contract, if the worker requests to continue to fulfill the labor contract, the employing unit shall continue to perform it. If the worker fails to continue to fulfil the labor contract or the labor contract can not continue to perform, he shall pay the worker compensation in accordance with two times the economic compensation standard stipulated in the forty-seventh article of this law.