Due to insufficient evidence, the relevant APP platform could not be opened, and another flexible employee was judged to have an employment relationship.
Shanghai No.1 Intermediate People's Court
Civil judgment
Case No.: (2021) Hu 01 Min Zhong No. 14407
Appellant (defendant in the original trial): Shanghai WeitePai Supply Chain Co., Ltd., domiciled at 277H, Building 5, No. 750 Linyuan Street, Zhujing Town, Jinshan District, Shanghai.
Legal representative: Gui Shiming, manager.
Entrusted litigation agent: Chen Lei, a lawyer at Shanghai Hansheng Law Firm.
Appellee (plaintiff in the original trial): Zhou X, male, born on xx march xx 1985, Han ethnicity, household registration in xx city, Jiangsu Province.
Entrusted litigation agent: Wang Wenfang, lawyer of Shanghai Hengfu Law Firm.
The appellant, Shanghai Weitepai Supply Chain Co., Ltd. (hereinafter referred to as Weitepai Company), appealed to this court against the Shanghai Songjiang District People's Court (2021) Hu 0117 Min Chu No. 9736 Civil Judgment of the Shanghai Songjiang District People's Court (2021) in connection with the confirmation of the labor relationship dispute with the appellee Zhou X. After the court filed the case on November 10, 2021, a collegial panel was formed in accordance with law and held a public hearing on December 9, 2021. The appellant, Wei Special, sent Chen Lei, the company's entrusted litigation agent, and Wang Wenfang, the appellee's entrusted litigation agent Zhou Moumou, to participate in the litigation in court. The case is now closed.
Appeal request of Weite Company: The first-instance judgment was revoked and the judgment was changed to confirm that there was no employment relationship between Mr. Zhou and his company from May 27, 2019 to April 20, 2021. Key facts and reasons:
(1) The two parties are in a contracting relationship, not an employment relationship. Mr. Zhou independently contracted the delivery business of the micro-dispatch company through the flexible employment platform, and the two parties settled the settlement according to the delivery volume of Mr. Zhou through the platform. The micro-dispatch company does not specifically manage the delivery process of Mr. Zhou, Mr. Zhou uses his own skills and tools to deliver the goods, and the micro-special dispatch company has never expressed the willingness and intention to establish an employment relationship with Mr. Zhou. The parties are in an independent contracting relationship, not an employment relationship.
(2) Mr. Zhou is not a self-owned employee of The Micro Special Dispatch Company, but a flexible employee who has established a contracting relationship with a third party through an online platform. Mr. Zhou knew about the certification of the platform and knew that his remuneration was issued by the platform, not as Mr. Zhou repented when he complained about it. At present, the third-party platform is afraid of taking responsibility and avoids handling, which is beyond the control of the micro-special company. In addition, the relevant disputes in this case have long passed the statute of limitations, which one-sidedly increases the burden of proof of the micro-special company and is unfair to the micro-special company. In summary, the first-instance judgment was erroneous, and the second-instance court was requested to change the judgment in accordance with law.
Mr. Zhou did not accept the appeal request of the micro-special dispatch company, arguing that the micro-special dispatch company managed its employment, and it was engaged in the work arranged by the micro-special dispatch company, and the two parties had an employment relationship. The first-instance judgment was correct and demanded to be upheld.
Mr. Zhou filed a lawsuit with the court of first instance, requesting a judgment confirming the existence of an employment relationship with Weite Company from March 25, 2019 to April 20, 2021. Weite also filed a lawsuit with the court of first instance, requesting a judgment confirming that the parties did not have an employment relationship between March 22, 2020 and April 20, 2021.
The court of first instance found the facts:
Zhou Moumou works at a courier station operated by Wei Te Company. In the bank details provided by Mr. Zhou, Mr. Zhou transferred the funds of the micro-special company on May 27, May 29, May 31, June 1, June 2, June 3, and June 4, 2019, all of which indicated "Huangpu one-stop public funds". After June 17, 2019, a number of third parties issued a certain amount of money from Zhou, indicating "micro-special dispatch project" and "micro-special dispatch 7.16 issued 283 transactions".
In the first instance, Mr. Zhou also submitted a work certificate, employee handbook, email and chat record screenshots to prove that he was under the management of the employees of the micro-special company and was an employee of the micro-special company. In addition to confirming the authenticity of the form of the employee handbook, Weite Company did not recognize the authenticity of the remaining evidence, believing that the work certificate could not confirm the authenticity of the official seal due to the long time, and the screenshots of the email and chat records could not show that it was sent to Zhou Moumou.
In the first instance, Weite Company provided a freelance contracting agreement, a self-employed service agreement, a tripartite agreement for project outsourcing services, etc., to prove that its company released part of the site business to the employment platform, Zhou X established a contracting relationship with the platform, and Wei Te Company confirmed attendance for existing employees, but excluded Zhou X. Mr. Zhou did not recognize the authenticity of the above evidence, believing that The Micro Special Dispatch Company had not signed a contracting agreement with a third party. Weite Company confirmed that the app platform currently described cannot be opened.
On March 22, 2021, Mr. Zhou applied to the Shanghai Songjiang District Labor and Personnel Dispute Arbitration Commission for arbitration, requesting confirmation of the existence of an employment relationship between him and Weite Company from March 25, 2019 to April 20, 2021. On May 11, 2021, the arbitration commission ruled in Songlao Renzhong (2021) Office Zi No. 865 that there was an employment relationship between Mr. Zhou and Weite Company from March 22, 2020 to April 20, 2021. After the ruling, both parties were not satisfied and sued the court of first instance.
The court of first instance held that in this case, Wei Special Company claimed that Zhou X's application for arbitration to confirm the existence of an employment relationship with Micro Special Company had exceeded the statute of limitations for labor dispute arbitration, but because the confirmation of the labor relationship was a confirmation lawsuit, it did not have the content of payment, and was not subject to the limitation period, so the limitation defense raised by Wei Special Company was not adopted. According to the facts ascertained in this case, The Micro Special Dispatch Company confirmed that Mr. Zhou worked at the Huangpu Station, No. XX Road, Huangpu District, Huangpu District, which was set up by his company, and that the work content of Mr. Zhou should be an integral part of the business of the Micro Special Dispatch Company, which shows that Mr. Zhou is working for the Micro Special Dispatch Company. Weitepai Company believes that some of its own employees exist in its company, some of which are flexible employees who have established a contracting relationship with a third party, and Zhou Moumou belongs to the latter, and Weitepai Company should bear the main burden of proof for this claim. According to the evidence provided by Mr. Zhou, there were direct transfer transactions between the two parties between May 27 and June 4, 2019, and the work certificate submitted by Mr. Zhou was also stamped with the official seal of the micro-special company, and although the micro-special company did not recognize the authenticity of the official seal, it did not provide evidence to refute it, and the micro-special company also failed to provide the agreement between Mr. Zhou and the third party during the period, so the micro-special company denied that the labor relationship lacked basis. After June 17, 2019, although a third party issued a sum of money from Zhou, the freelancer contracting agreement provided by Weite Company was a printed copy, and the APP involved could not be opened, and the authenticity was difficult to accept. At the same time, the micro-special dispatch company claimed that it was in a contract relationship with Mr. Zhou, and it was unable to clarify the time of issuing Mr. Zhou's money and the composition of the corresponding payment. In summary, it was confirmed that there was an employment relationship between Mr. Zhou and the micro-special dispatch company. As for the time of the labor relationship, Mr. Zhou did not produce evidence to prove that he joined the micro-special dispatch company on March 25, 2019, and as appropriate, it was determined in conjunction with the time of the first payment in the bank details, and both parties stated that Mr. Zhou worked until the end of April 2021, so it was confirmed that the two parties had an employment relationship between May 27, 2019 and April 20, 2021.
Accordingly, in accordance with Article 2 of the Employment Contract Law of the People's Republic of China, the court of first instance ruled on September 17, 2021: confirming that mr. Zhou and Shanghai Weitepai Supply Chain Co., Ltd. had an employment relationship from May 27, 2019 to April 20, 2021. The first-instance case acceptance fee is 10 yuan, and the halving is charged 5 yuan, which is borne by Mr. Zhou.
In the second-instance trial, neither party provided new evidence.
After trial, it was ascertained that the above facts determined by the court of first instance were correct, and neither party had any objections, and this court confirmed them.
In the second-instance trial, Weite Company stated that each of its express delivery stations has its own employees and contracting relationship personnel, its own employees are used to maintain a relatively stable business for many years, and the peak period or some flexible needs are completed by the contracting relationship personnel; its own employees should obey the company's management and command, and the contracting relationship personnel only need to send pieces, and they are unwell and have things to do; the contracting relationship personnel are paid according to the pieces, and the own employees also settle their wages according to the different positions. Zhou Moumou stated that it belongs to its own employees, each site such as "double 11" and "double 12" to engage in activities are too late, will recruit temporary employees for a few days, temporary employees belong to the contracting relationship personnel, the company every day to roll call and send videos to the WeChat group in the way of attendance, monthly attendance statistics.
The court asked whether the micro-special company could provide evidence of Zhou's free leave and non-coming to work, and the micro-special dispatch company said that it could not provide it.
This court held that the focus of the dispute in this case was whether there was an employment relationship between Wei Special Dispatch Company and Mr. Zhou. According to the evidence in the case and the statements of both parties, the micro-special dispatch company confirmed that Zhou xxx worked at the courier station operated by the micro-special dispatch company, Zhou xxx had direct transfer transactions with the micro-dispatch company, the money received had notes such as "micro-dispatch project", and the work certificate submitted by Zhou xxx was stamped with the official seal of the micro-special dispatch company, and although the micro-special dispatch company said that it could not confirm the authenticity of the official seal due to a long time, it did not provide evidence to refute it, so it could be accepted. Therefore, the evidence provided by Mr. Zhou can prove that there is an employment relationship between him and the micro-special dispatch company. The micro-special company claimed that the two parties were not in an employment relationship, but a contracting relationship, and should bear the burden of proof. The contracting agreement provided by Wei Tepai Company is a printout, and the relevant APP platform cannot be opened, which is difficult to accept in the case of Zhou Moumou's denial. Weite Company claimed that its company had its own employees and contracting relationship personnel, but failed to clarify the difference between the two in terms of employment management and payment, and failed to provide evidence to prove that Zhou was a contracting relationship personnel rather than its own employees, so Weitepai Company should bear the legal consequences of failing to adduce evidence. Based on the transfer time in the bank details and the statements of both parties, the court of first instance confirmed, as appropriate, that there was no improper employment relationship between Mr. Zhou and Weite Company between May 27, 2019 and April 20, 2021.
In summary, the appeal request of The MicroText Company lacks basis and is difficult to support; the first-instance judgment is not improper and can be upheld. Therefore, in accordance with the provisions of article 177, paragraph 1, subparagraph (1) of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
The appeal was dismissed and the original judgment was upheld.
The acceptance fee for the second-instance case is 10 yuan, which is borne by Shanghai WeitePai Supply Chain Co., Ltd.
This judgment is final.
Judge Changye Jia
Judge Song Yun
Judge Gu Ying
Scribe Li Yang
February 8, 2022