Mr. Zhao is an employee of Company A, and has been stationed by Company A for a long time to work as an operator in the water purification and reuse project of Shaoxing Company S. On May 1, 2020, Mr. Zhao (Party B) and Company A (Party A) signed a "Labor Contract", the main content of which is: the two parties determined that the term of the labor contract is from May 1, 2020 to April 30, 2021. According to the production (work) needs, Party A arranges Party B to work in the operation position (type of work). The monthly salary of Party B during the probation period is 80% of the type of work. The monthly post salary after the probation period of Party B is determined to be the internal wage distribution method that combines basic salary and performance salary, and Party B's basic salary is determined to be 2,000 yuan per month; The performance salary shall be determined according to the internal distribution method according to Party B's work performance, labor results and actual contributions. The modification, dissolution, renewal and termination of labor contracts shall be carried out in accordance with the provisions of law, and the relevant formalities shall be handled in accordance with the law. The contract also stipulates other related matters. On December 7, 2022, Zhao accidentally sprained his waist while working with a hammer in the project, and was immediately sent to Shaoxing Central Hospital for diagnosis and treatment, and was diagnosed with a waist injury. On March 2, 2023, Mr. Zhao submitted an application for work-related injury recognition to the relevant departments. On March 27, 2023, Company A made a "Notice", stating that "since February, the company has negotiated with Zhao many times to sign relevant matters on labor and employment contracts, but Zhao refused to sign for various reasons, according to the company's labor and employment specifications, Zhao is an automatic resignation, and the company will deliver Zhao's salary and social security until March 2023, and stop paying social security and wages from April, hereby notified." and so on. On April 27, 2023, the Human Resources and Social Security Bureau of Keqiao District, Shaoxing City, determined that Zhao's injury was a work-related injury. At the time of the accident, Company A paid the basic pension insurance premium for Zhao. Company A paid labor remuneration to Zhao through bank transfer.
In 2023, Mr. Zhao applied to the Labor and Personnel Dispute Arbitration Commission of Keqiao District, Shaoxing City (hereinafter referred to as the Arbitration Commission) for a labor dispute case with Company A. The court is required to adjudicate: 1. to confirm the existence of a de facto labor relationship between Mr. Zhao and Company A from March 2015 to March 2023, 2. to pay compensation of 109728 yuan for the illegal termination of the labor contract, 3. to pay a total of 75,438 yuan of double wages for the period from June 1, 2021 to May 1, 2022 without signing a written labor contract, and 4. to pay 5,818 yuan, 6,858 yuan, and 6,858 yuan respectively for the period of suspension of work in January, February, and March 2023. On August 27, 2023, the Arbitration Commission rendered the Arbitral Award (2023) No. 1076 of Zheshao Keqiao Lao Ren Zhong Case, which reads as follows: 1. Confirming the existence of an employment relationship between the two parties from March 2015 to March 2023; 2. Company A paid Zhao RMB 76,304.70 in economic compensation for the illegal termination of labor relations, another double salary of RMB 47,593 in the double salary of the failure to sign a written labor contract from June 1, 2021 to April 30, 2022, and RMB 10,771.13 in the wage difference during the suspension period, totaling RMB 134,668.83, which shall be paid within 10 days from the effective date of the award. Later, both parties were dissatisfied with the ruling and sued separately.
It was also ascertained that on June 5, 2023, the legal representative of Company A was changed from Zhu to Qian.
Only by dedicating workers, keeping sincerity with employers, respecting each other and cooperating on an equal footing, can we build a harmonious and stable employment environment and contribute to the prosperity of people's lives, economic and social development, and the prosperity of the country. Article 4 of the Interpretation (I) of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (Fa Shi (2020) No. 26) stipulates that: "If both the employee and the employer are dissatisfied with the same award of the labor dispute arbitration institution and file a lawsuit with the same people's court, the people's court shall join the cases for trial, and the parties shall be the plaintiff and defendant of each other, and the people's court shall make a ruling on the claims of both parties together." Where one party withdraws the lawsuit during the course of litigation, the people's court shall continue the trial on the basis of the other party's litigation request. If the parties separately file a lawsuit with the people's court with jurisdiction over the same arbitral award, the people's court that accepts the award later shall transfer the case to the people's court that accepts the award first. "Now Zhao and Company A are both dissatisfied with the arbitration award of Zheshao Keqiao Lao Ren Zhong Case (2023) No. 1076 to the court, and the court will combine the trial in accordance with the law, and the two parties are the plaintiff and defendant of each other. Accordingly, the court made the following judgment and analysis on the various litigation claims of Zhao and Company A.
Regarding whether there was an employment relationship between the two parties from March 2015 to March 2023. Company A asserted that the two parties had established an employment relationship since March 2018, and that Mr. Zhao had worked for another company before that, and provided Mr. Zhao's proof of participation in the basic pension insurance of Zhejiang Province over the years. The court held that, firstly, the certificate of participation submitted by Company A could only prove that the outsider Shaoxing H Company had paid the basic pension insurance for Zhao in May 2017, but Zhao denied that he was employed by the outsider and was only in the nature of a part-time job, and he was still working for Company A, so the above-mentioned evidence submitted by Company A was not sufficient to prove that there was no employment relationship between it and Zhao from March 2015 to February 2018. Secondly, according to the recording of the conversation between Zhao and Zhu, the former legal representative of Company A, on March 5, 2023, Zhu stated, "Then I will tell you in the past 8 years, according to 8 years, I will make up your 2,500 a month salary, and I will make you 20,000 yuan in 8 years, this is my maximum range of bearing, if it works, then we will sign an agreement, one shot and two scattered, if not, then I can't help it, I will accompany you to the end." and other content, which can corroborate the fact that Zhao claimed that he had been working at Company A since March 2015. Third, as the employer, Company A has the relevant evidence materials that can prove Zhao's entry and resignation time, such as the management employee roster and attendance records, and Company A should bear the corresponding adverse consequences if it fails to submit evidence such as the company's employee roster and attendance records. To sum up, the court accepted Zhao's claim based on the above-mentioned recordings submitted by Zhao and the detailed statements of the separate accounts, and confirmed the existence of a de facto employment relationship between the two parties from March 2015 to March 2023 in accordance with the law, and did not support Company A's application to confirm that there was no employment relationship between the two parties from March 2015 to February 2018.
On whether Company A should pay compensation to Zhao for illegally terminating the labor contract. Company A asserted that Zhao refused to sign the labor contract and refused to go to work, so it dismissed Zhao in accordance with the company's rules and regulations. Zhao asserted that Company A notified him in writing on March 27, 2023 that it would stop paying wages and social security payments from April 2023, which was an illegal termination of the employment relationship between Company A and him. The court held that according to the first paragraph of Article 6 of the Regulations for the Implementation of the Labor Contract Law of the People's Republic of China, "if the employer fails to conclude a written labor contract with the employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly salary in accordance with Article 82 of the Labor Contract Law and make up a written labor contract with the employee; If the employee does not conclude a written labor contract with the employer, the employer shall notify the employee in writing to terminate the labor relationship and pay economic compensation in accordance with Article 47 of the Labor Contract Law. Even if there is a situation in which Mr. Zhao does not enter into a written labor contract with Mr. Zhao as stated by Company A, Company A may notify Mr. Zhao in writing to terminate the employment relationship and shall pay economic compensation at the same time. However, Company A directly handled Zhao's voluntary resignation, and stopped paying wages and social security, which violated the above provisions; There is no evidence of the company's rules and regulations on which Company A is based, and they are not binding on Zhao; Mr. Zhao also asked Company A for leave because the hospital recommended a break after the work-related injury, and did not deliberately refuse to go to work, so the above-mentioned acts of Company A were illegal termination of the labor relationship, and compensation should be paid to Mr. Zhao in accordance with the law. With regard to Zhao's working years, the court determined that the duration of the employment relationship between the two parties was 8 years based on the above-mentioned determination. On the issue of the monthly wage standard for compensation, Mr. Zhao asserted that it should be calculated based on his average monthly salary of 6,858 yuan for the 12 months of December 2021, January 2022 and March 2022 to December 2022, and held that the arbitration commission erred in determining that his average monthly salary for the 12 months of November 2021, December 2021, January 2022 and March 2022 to November 2022 was 6,812.92 yuan. The court held that "the monthly wage referred to in this article refers to the average salary of the employee in the 12 months prior to the termination or termination of the labor contract" as stipulated in paragraph 3 of Article 47 of the People's Republic of China Labor Contract Law, which should be understood to mean the average salary of the employee in normal working conditions for 12 months before the termination or termination of the labor contract, excluding the period of medical treatment and other abnormal working periods. According to the outpatient diagnosis certificate submitted by Zhao, it can be confirmed that he went to the hospital for medical treatment on December 7, 2022 and was diagnosed with a lumbar injury and a bulging disc in the lower back 4/5, and was recommended to rest for a week (December 7, 2022 to December 13, 2022), so Zhao had a partial medical treatment period during December 2022, and the court calculated the average monthly salary of 6,812.92 yuan during Zhao's normal work period for 12 months (excluding December 2022) before his injury according to the actual circ*mstances of this case. With regard to the composition of the wages paid by Company A, although Company A provided a salary schedule made by itself, Zhao did not recognize it, and the above-mentioned salary schedule was not signed and confirmed by Zhao, so the court did not recognize it. Zhao asserted that his salary composition was only a basic salary of 3,000 yuan plus production wages, but only his unilateral statement was not supported by other sufficient evidence, so the court did not accept it. As to whether the wages paid by Company A included overtime pay, Zhao stated that he went to work from 7 a.m. to 7 p.m., Saturday and Sunday, but the converted wages for normal working hours were higher than the minimum wage standard of Shaoxing City, so the wages paid by Company A should have included overtime wages, but since the specific amount of overtime pay could not be accurately distinguished, and the two parties could not agree on the composition of the wages, the court calculated Zhao's monthly wage standard for compensation based on 70% of the above-mentioned average monthly wage. Based on this, it is calculated that Company A should pay Zhao 76,304.70 yuan (6,812.92 yuan/month× 70% ×8 months×2 times). Company A's claim that it did not need to pay compensation to Zhao was not based on sufficient grounds and was not supported by the court.
On whether Company A should pay Zhao double the difference in wages. Company A asserted that it had signed the Labor Contract with Mr. Zhao on May 1, 2020, and that after the expiration of the contract period on April 30, 2021, Mr. Zhao refused to renew the written labor contract, and it was not required to pay Mr. Zhao double wages. The court held that if the employer continues to employ the employee after the expiration of the term of the employment contract signed between the employer and the employee, it shall reach an agreement with the employee and renew the written employment contract within one month from the date of the continued employment. In this case, the expiration date of the Labor Contract signed between Company A and Zhao on May 1, 2020 was April 30, 2021. Therefore, the court upheld Zhao's claim for double the wage difference for the period from June 1, 2021 to May 1, 2022. Regarding the calculation of the double wage difference, Zhao's claim was directly calculated based on his average monthly salary of 6,858 yuan for a total of 12 months in December 2021, January 2022 and from March 2022 to December 2022, which was insufficient and was not supported by the court. According to the court's above determination, the wages paid by Company A should include overtime pay, but the two parties could not agree on the composition of the wages, so the court calculated 70% of Zhao's take-home wages for the period from June 1, 2021 to May 1, 2022 to RMB 47,593. As for Company A's claim that it had requested Zhao to renew the written labor contract between June 1, 2021 and May 1, 2022, Zhao's refusal to sign the contract resulted in the non-renewal of the contract between the two parties, and there was only his unilateral statement and no other sufficient evidence to support it, so the court did not support its claim that the difference in double wages should not be paid. At the same time, Company A argued that Zhao's claim that the above-mentioned double wage difference had exceeded the statute of limitations, and the court held that Company A did not raise a defense beyond the period of arbitration application at the arbitration stage, and after the arbitration commission made a substantive award, Company A made a defense on the grounds that the limitation period for arbitration had expired at the litigation stage of this case, which was not supported by the court.
Regarding whether Company A should pay Zhao the wages for the period from January to March 2023. Paragraph 1 of Article 33 of the Regulations on Work-related Injury Insurance stipulates that: "If an employee is injured in an accident or suffers from an occupational disease at work and needs to suspend work to receive medical treatment for work-related injuries, the original salary and benefits shall remain unchanged during the period of suspension with pay, and shall be paid by the employer on a monthly basis." In this case, Zhao's injuries were determined by the relevant departments to be work-related injuries, and based on Zhao's injuries and the outpatient diagnosis certificate submitted by Zhao, Zhao claimed that the period from January to March 2023 was reasonable, and the court confirmed that Company A, as the employer, should pay wages and benefits during that period. However, according to the wages received by Zhao during the arbitration, he only received a salary of 1,040 yuan in January 2023, a salary of 998 yuan in February 2023, and a salary of 1,498 yuan in March 2023. The wages paid by Company A should have included overtime wages, so the court calculated the difference in wages for the suspension period of 10,771.13 yuan (6,812.92 yuan×70% × 3 months, 1,040 yuan, 998 yuan, and 1,498 yuan) for 3 months according to 70% of Zhao's average monthly salary of 6,812.92 yuan (excluding December 2022) during the normal working period before his injury. Company A asserted that it had paid on time and requested that it not be required to pay the above-mentioned difference to Zhao, but the basis was insufficient, and the court did not support its claim.
1. Confirm that there was an employment relationship between Mr. Zhao and Company A from March 2015 to March 2023;
2. Company A paid Zhao a compensation of 76,304.70 yuan, another salary of 47,593 yuan for the double salary of the failure to sign a written labor contract, and 10,771.13 yuan for the wage difference during the suspension period, totaling 134,668.83 yuan, which shall be paid within 10 days from the effective date of this judgment;
3. Rejecting Zhao's other litigation claims;
4. Company A's claim was dismissed.
