Henan province zhengzhou city jinshui district people's court

civil judgment

(2011) jinminyi initial word no. XXXX, XXXXX

plaintiff (defendant) XXXXXXX

defendant (plaintiff) zhengzhou XXXXX catering co.

XXXXX v. Zhengzhou XXXXX Catering Co., Ltd. labor dispute case and Zhengzhou XXXXX Catering Co., Ltd. v. XXXXX labor dispute dispute case, this court accepted, in accordance with the provisions of article 11 of the supreme people's court on the trial of labor dispute cases on the application of certain issues of the law of the interpretation of the (2), the trial is consolidated, and the two parties for each other as the plaintiff and defendant. This court according to law, formed a collegial panel, public hearing. xxxx, zhengzhou xxxxx catering company limited to the court to participate in the proceedings. This case is now concluded.

XXXX claim: XXXX since June 4, 2010 to September 17, 2010 in Zhengzhou XXXX Catering Co., Ltd. engaged in pastry chef work, the two sides agreed to a monthly salary of 4,500 yuan. XXXXX work in the process, Zhengzhou XXXX Catering Co., Ltd. has not signed a written labor contract with XXXXXX, and also did not give the XXXX for social insurance. Zhengzhou XXXX Catering Co., Ltd. also required XXXXX to work overtime frequently. Zhengzhou XXXX Catering Co., Ltd. failed to pay XXXX wages from July 26, 2010 to September 17, 2010, and XXXX voluntarily resigned from his job on September 17, 2010. on November 2, 2010, XXXX applied for arbitration to Zhengzhou Jinshui District Labor Dispute Arbitration Committee, and the Arbitration Committee issued an award to XXXXX on December 14, 2010, which did not support XXXXX's claim. The award did not support the fact that XXXX was paid RMB 4500 per month (salary), nor did it support the fact that XXXX was paid RMB 3500 per month on the certificate issued by Zhengzhou XXXX Catering Co. XXXX did not accept the arbitration award, and sued this court, requesting Zhengzhou XXXX Catering Co. to pay RMB 8100 for the period from July 26 to September 17, 2010, RMB 8622 for overtime, and RMB 8622 for the period from July 26 to September 17, 2010, and RMB 8622 for overtime. 8622 yuan, July 4, 2010 to September 17, 2010 without signing a labor contract double wages 11550 yuan.

Zhengzhou XXXXX Catering Co., Ltd. argued: XXXX complained of its company name does not match. XXXX in September 10, 2010 (not XXXX complained of June 4) to Zhengzhou XXXXX Catering Co., Ltd. Zhengzhou XXXXX Catering Co., Ltd. did not owe XXXX wages. XXXX work less than a month, according to the labor contract law. According to the labor contract law, there is no question of double wages. Zhengzhou XXXX Catering Co., Ltd. has never asked XXXX overtime work, and the overtime payment it claimed has no factual basis.

Zhengzhou XXXX Catering Co., Ltd. claimed that: XXXXX in the labor dispute arbitration is not true, resulting in labor dispute arbitration award based on factual errors, XXXXX's request should not be supported. Zhengzhou XXXX Catering Co., Ltd. requested not to pay the defendant's wages 6173.18 yuan and double wages 6458.98 yuan.

XXXX argued: XXXX in June 4, 2010 to Zhengzhou XXXX Catering Co., Ltd. to work, the monthly salary of 4500 yuan, the two sides did not sign a written labor contract. Because Zhengzhou XXXX Catering Co., Ltd. violated the relevant provisions of the labor law, requiring XXXX to work overtime, XXXX resigned from work on September 17, 2010, but Zhengzhou XXXX Catering Co., Ltd. did not pay the wages from July 26, 2010 to September 17th.

XXXX adduced the following evidence: 1, Zhengzhou XXXX Catering Co., Ltd. proved a certificate, proving that XXXX in Zhengzhou Wangjiang Spring Catering Co., Ltd. work; 2, Zhengzhou XXXX Catering Co., Ltd. on XXXX's fines and add menu, proving that XXXX from June 2010 in Zhengzhou XXXX Catering Co. On June 4, 2010 began to work in Zhengzhou XXXX Catering Co., Ltd. daily working hours of 9:00 to 14:30 and 17:00 to 22:00, working ten and a half hours a day; 4, a copy of the audio recording information, proving that Zhengzhou XXXX Catering Co., Ltd. admitted that XXXX sued the contents of the intentional non-payment of wages; 5, a copy of the basic information of the enterprise.

Zhengzhou XXXX Catering Co., Ltd. one by one cross-examination that: 1, stamped with the invoice special chapter, rather than the company's administrative chapter, does not have the effect of external behavior on behalf of the company, there are objections to the authenticity of the 2, no company seal, there are objections to the authenticity and relevance of the executor of the XXXX has nothing to do with the Zhengzhou XXXX Catering Co. Objection, the witness should testify in court; 4, do not know who the recording object is, can not prove relevant to this case; 5, no objection.

Zhengzhou XXXX Catering Co., Ltd. adduced the following evidence: 1, a copy of the business license, proving that the plaintiff was established on July 15, 2010, before the formation of labor relations with the defendant is not possible; 2, labor dispute arbitration award.

XXXX cross-examination that: 1, is a copy, not cross-examination; 2, the authenticity of no objection, the legitimacy of objection.

The hearing identified, Zhengzhou XXXX Catering Co., Ltd. was established in July 15, 2010, XXXX original Department of its employees, the wage rate of 3500 yuan / month, the two sides did not sign a written labor contract. September 17, 2010, the two parties to terminate the labor relationship. November 2, 2011, XXXX XXXX to Zhengzhou City, Jinshui District Labor Dispute Arbitration Committee applied to the labor dispute arbitration. Labor Dispute Arbitration, requesting the following matters: 1, requesting Zhengzhou XXXX Catering Co., Ltd. to pay 8,100 yuan of wages from July 26 to September 17, 2010; 2, requesting Zhengzhou XXXX Catering Co., Ltd. to pay 8,622 yuan of overtime; 3, requesting Zhengzhou XXXX Catering Co., Ltd. to pay 11,550 yuan of double wages for the period from July 1 to September 17, 2010, when the labor contract was not signed; 4, requesting Zhengzhou XXXX Catering Co. 11,550 yuan; 4, Zhengzhou XXXX Catering Co., Ltd. to make up for the social insurance from June 4, 2010 to September 17, 2010. December 14, 2010, Zhengzhou Jinshui District Labor Dispute Arbitration Committee made Jinlao Arbitration No. 2010275 arbitration award. Both parties are dissatisfied, has sued to this court, so this case dispute.

Another identified, XXXX in the trial, said, give up the request for social insurance.

The Court held that, as the parties had a labor relationship, as well as the fact that the termination of the labor relationship on September 17, 2010 does not dispute, the Court will find the fact. On the establishment of labor relations, the parties disagree: XXXXX that since June 4, 2010; Zhengzhou XXXXX Catering Company Limited that since September 10, 2010 onwards. The court held that Zhengzhou XXXXX Catering Co., Ltd. as an employer, has the ability to provide evidence of the recruitment of employees, onboarding and other aspects of the evidence, but also has the ability to provide the labor contract law, article 7 of the employee roster (according to the provisions of article 8 of the regulations on the implementation of the labor contract law, the employee roster should include the starting time of employment, etc.) to prove that the parties to the establishment of the labor relationship, the "supreme people's court on the civil litigation Article 6 of the Supreme People's Court Provisions on Evidence in Civil Litigation also stipulates that where a labor dispute arises because the employer has made a decision to calculate the number of years of service of a worker, the employer shall bear the burden of proof. Therefore, the Court considers that Zhengzhou XXXX Catering Co., Ltd. should bear the burden of proof on the establishment of a labor relationship between the two parties, and that Zhengzhou XXXX Catering Co., Ltd. should bear the unfavorable consequences for failing to prove this. According to the first paragraph of Article 2 of the Labor Law, the Court considers that Zhengzhou XXXX Catering Co., Ltd. has the qualification of an employer, which is one of the necessary conditions for the establishment of the labor relationship between the two parties in this case. According to the business license submitted by Zhengzhou XXXX Catering Co., Ltd. and the enterprise basic information inquiry sheet submitted by XXXX, it can be proved that Zhengzhou Wangjiang Spring Catering Co., Ltd. was established on July 15, 2010, therefore The Court considers that the labor relationship between the parties existed from July 15, 2010 to September 17, 2010.

Regarding XXXX's wage standard, there was a dispute between the two parties. XXXX claimed that his wage standard was RMB 4500/month, but the wage standard recorded in the documentary evidence submitted by XXXX was RMB 3500/month; Zhengzhou XXXX Catering Co., Ltd. denied the wage standard shown in XXXX's evidence, and claimed that it didn't owe XXXX's wages, but Zhengzhou XXXX Catering Co. Ltd. neither adduced evidence on XXXX's wage standard, nor failed to adduce evidence on the amount of wages it actually paid to XXXX. The Court holds that paying wages to workers is an important obligation of the employer, Zhengzhou XXXX Catering Co., Ltd. should hold evidence of paying wages to XXXX, but Zhengzhou XXXX Catering Co., Ltd. did not submit it, even if the wage standard agreed by the parties is not clear, Zhengzhou XXXX Catering Co., Ltd. should have the ability to provide evidence of equal pay for equal work as stipulated in Article 18 of the Labor Contract Law, and therefore, this Court will not provide evidence of the same pay for equal work based on the evidence provided by the parties. Therefore, according to the ability to prove that Zhengzhou XXXX Spring Catering Co., Ltd. should bear the adverse consequences of the corresponding evidence, the court accepts the XXXX submitted in the documentary evidence of 3500 / month of the wage standard.

On the subject of the XXXX complaint. Zhengzhou XXXX Catering Co., Ltd. that the defendant listed in the complaint XXX "Zhengzhou XXX catering company limited", its company name does not match. The court thinks, this case is a labor dispute, the labor dispute arbitration committee arbitration award set out the name of zhengzhou xxxx catering company limited, xxxx because of the labor dispute arbitration award before filing a civil lawsuit, han fujun and in the trial, it is more than one "city" word is a clerical error, requesting corrections, therefore The court holds that in this case, although XXXX wrote the name of Zhengzhou XXXXX Catering Co., Ltd. as "Zhengzhou XXXXX Catering Co., Ltd.", it did not cause any ambiguity, and should be corrected as a clerical error. Another point to be noted is that, according to Article 48 of the Labor Dispute Mediation and Arbitration Law of the People's Republic of China, "If a worker is dissatisfied with the arbitration award provided for in Article 47 of this Law, he or she may file a lawsuit with the People's Court within fifteen days from the date of receipt of the arbitration award." If the above procedural flaws of XXXX are over-emphasized, it will possibly affect the substantive rights of XXXX, which will not be in line with the principle of protecting the legitimate rights and interests of workers as stipulated in Article 1 of the Labor Law.

Article 17 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law to the Trial of Labor Dispute Cases stipulates, "After the Labor Dispute Arbitration Committee has made an arbitration award, if the parties are not satisfied with some of the matters in the award, and they sue the people's court according to the law, the Labor Dispute Arbitration Award does not have legal effect." As the parties were not satisfied with the Labor Dispute Arbitration Award, the civil litigation in this case was still about the labor dispute between the parties. For XXXX to the labor dispute arbitration committee application matters and its in this civil litigation, combined with Zhengzhou XXXX catering limited company's litigation request, this court respectively comment as follows:

(a) XXXX request Zhengzhou XXXX catering limited company to pay 8100 yuan of wages from July 26 to September 17, 2010, Zhengzhou XXXX catering Ltd. requested that no further wages be paid to XXXX. As mentioned above, Zhengzhou XXXX Catering Co., Ltd. should prove that it has paid full wages to XXXXX, but Zhengzhou XXXX Catering Co., Ltd. did not prove this, and it should bear the corresponding adverse consequences. Based on the foregoing determination of the period of labor relationship between the two parties and XXXXX's wage standard, the Court finds that Zhengzhou XXXX Catering Co., Ltd. should pay XXXXX's wages from July 26, 2010 to September 17, 2010 in accordance with the standard of RMB 3,500/month. According to the calculation method determined by the Ministry of Labor and Social Security's Circular on Issues Concerning the Conversion of Employees' Average Monthly Working Hours and Wages for the Whole Year (Ministry of Labor and Social Security [2008] No. 3), daily wage = monthly wage income ÷ number of days of monthly payroll, and the number of days of monthly payroll = (365 days - 104 days) ÷ 12 months = 21.75 days. Checking the 2010 calendar, there were 5 working days from July 26, 2010 to July 31, 2010*** and 13 working days from September 1, 2010 to September 17, 2010***, i.e., there were 1 month and 18 working days from July 26, 2010 to September 17, 2010***, and XXXXXX's salary for this period should be 3500 + 3500 ÷ 21.75 × 18 = 6396.55 yuan. Therefore, Zhengzhou XXXX Catering Co., Ltd. should pay XXXX 6396.55 yuan in wages.

(b) XXXX request Zhengzhou XXXX Catering Company Limited to pay overtime 8622 yuan. Because XXXX in addition to written testimony, did not provide other evidence to prove the fact that it claimed overtime, and the witness who issued the written testimony did not appear in court without a valid reason, so according to "the supreme people's court on the evidence of civil litigation," article 69 (5), the court on the written testimony about overtime time is not admissible. Because XXXXXX failed to provide sufficient evidence to prove the fact of overtime work, this court will not support its claim for overtime pay.

(C) XXXX request Zhengzhou XXXX Catering Co., Ltd. to pay July 4, 2010 to September 17, 2010, without signing a labor contract double wages 11550 yuan, Zhengzhou XXXXX Catering Co., Ltd. requesting not to pay double wages to XXXX. As mentioned above, the parties' labor relationship existed from July 15, 2010 to September 17, 2010. The first paragraph of Article 82 of the Labor Contract Law stipulates, "If an employer fails to conclude a written labor contract with a worker for more than one month but less than one year from the date of employment, the employer shall pay the worker two times the monthly wages." According to this provision, Zhengzhou XXXX Catering Co., Ltd. shall pay two times the wages from August 15, 2010 to September 17, 2010 to XXXX. From August 15, 2010 to September 14, 2010 is calculated according to 1 month, from September 15, 2010 to September 17, 2010 there are three working days, according to the foregoing method of calculating the daily wage, Han Fu Jun from August 15, 2010 to September 17, 2010 the amount of wages for 3500 + 3500 ÷ 21.75 × 3 = 3982.76 yuan.

(d) XXXX request for retroactive payment of social insurance. Because XXXX said in the trial, give up the request for social insurance, so the Court will not deal with this part of the request.

In conclusion, Zhengzhou XXXX Catering Co., Ltd. should pay XXXX from July 26, 2010 to September 17, 2010 wages of 6369.55 yuan, not entered into a written labor contract of double wages of 3982.76 yuan. In accordance with Article 1, Article 2(1) and Article 50 of the Labor Law of the People's Republic of China, Articles 7, 10, 18 and 82(1) of the Labor Contract Law of the People's Republic of China, Article 64(1) of the National Procedure Law of the People's Republic of China, Article 8 of the Regulations on the Enforcement of the Labor Contract Law of the People's Republic of China, and with reference to the Supreme People's Court's Rules on Interpretation of Several Issues on the Application of Law in Trial of Labor Dispute Cases, Article 17, Interpretation of Several Issues on the Application of Law in Trial of Labor Dispute Cases of the Supreme People's Court (II), Article 11, Provisions of the Supreme People's Court on Several Provisions on Evidence in Civil Litigations, Articles 6, 7, 69(5) and 75, it is adjudicated as follows:

First, Zhengzhou XXXX Catering Co., Ltd. shall pay 6369.55 RMB to XXXXXX for the salary from July 26, 2010 to September 17, 2010 within ten days after the judgment takes effect.

Second, Zhengzhou XXXX Catering Co., Ltd. shall pay to XXXX within ten days after the effective date of the judgment, the double wages of 3982.76 RMB for not entering into a written labor contract.

Third, reject XXXXX's other requests.

Fourth, the dismissal of Zhengzhou XXXXX Catering Co.

If you fail to fulfill the obligation to pay money within the period specified in this judgment, you shall pay double the interest on the debt during the delayed period in accordance with the provisions of Article 229 of the Chinese People's **** and National Affairs Litigation Law.

The case acceptance fee *** counted 20 yuan, borne by Zhengzhou XXXX Catering Co.

If you do not accept this judgment, you can appeal to Zhengzhou Intermediate People's Court within fifteen days from the date of delivery of the judgment by filing a statement of appeal and ten copies to this court.

Liu XXXX, Judge

Zhao XXXX, Judge

Zheng XXXX, Judge

April 19, 2011

He XXXX, Bookkeeper

Please adopt, thank you