Judge's assistant Gao Tianqi
Judge Zhen Qianlong
Judge Wu Bowen
The "May Day" International Labor Day is approaching, in order to help workers caught in labor disputes to correctly defend their rights and properly resolve labor disputes, the judges of the First Intermediate People's Court of Beijing Municipality have explained the law and reasoned according to the typical cases of labor disputes that have been tried in the past, and taught some "hard-core" rights protection suggestions to the workers.
focus
Overtime transfer is not approved and no attendance counts as absenteeism?
In January 2019, Xiao Ge received an email from the company, which read: "Hello Xiao Ge: Zi Because you did not perform the correct attendance according to the company's regulations on January 11, 2019, you have been absent from work for 11 days, which seriously violates the company's attendance system, and now you have automatically terminated the labor relationship with the company, please go to the company as soon as possible to handle the procedures related to job handover and resignation." ”
It turned out that Xiao Ge had 15 days off in 2018 to work overtime and had not yet taken a break. At the end of the year, the company issued the "Notice of Clearance of Leave and Leave", requiring employees who applied for overtime before November 30, 2018, to complete the transfer and clear before February 3, 2019. Employees who applied for overtime in December 2018 will be on leave until February 28, 2019.
After the company issued the notice, Xiao Ge submitted an application to the company for a leave of absence, intending to take a leave of absence from January 10, 2019, for a total of 14 days. Xiao Ge did not go to work in the company since he applied for a leave of absence, and opened his own "vacation" mode. However, the company believes that Xiao Ge's application for leave is too long and does not approve his application for leave. When it was learned that Xiao Ge had not arrived at work on time for 11 consecutive days, the company sent an email in the name of "absenteeism" to ask for the termination of the labor contract.
Xiao Ge was not satisfied, he believed that he was only legally transferred, not absent from work, the company constituted an illegal termination of the labor contract, and should pay compensation. In May 2019, when Xiao Ge applied to the local arbitration commission to require the company to pay compensation for illegal termination of the labor contract, untaken annual leave wages, overtime wages and other expenses, he was told that it would not be accepted. After the communication was fruitless, he sued the company.
At the trial, the company said that Xiao Ge had left the job for personal reasons and submitted an employee's application for resignation and a certificate of resignation. "The attendance management system stipulates that those who leave without approval or who are absent from work without renewal of leave are regarded as absenteeism, and the absence is deducted from the wage of three times the length of absence, and the absence for 3 consecutive days is treated as automatic resignation." The company said that the wages paid in January 2019 included overtime wages, but due to Xiao Ge's absence, the wages have been fully paid after deduction.
Xiao Ge said that the reason why he did not attend work was because the company's director of human resources communicated with the president to let him go home and wait for the notice, and submitted an audio recording of the conversation between the two at that time to support it.
The court of first instance held that, first, according to the company, as an employer with management responsibilities, when Xiao Ge was not present, it was common sense to contact Xiao Ge to verify the reason for his non-attendance, but the company only expressed that it was not clear about this; secondly, the recording submitted by Xiao Ge also confirmed the fact that he and the interlocutor had discussed the issue of resignation and returned home. In addition, the court will not accept the authenticity of the records of annual leave, overtime attendance, etc. submitted by the company. In summary, the court ruled that the company should pay Xiao Ge compensation for the illegal termination of the labor contract, untaken annual leave wages and overtime pay on rest days totaling more than 100,000 yuan.
Dissatisfied with the first-instance judgment, the company counterclaimed to the First Intermediate People's Court, requesting that it be remanded for retrial or that all of Xiao Ge's litigation claims be rejected. After the second-instance court tried again, it found that the facts of the first-instance court's trial were correct, so it rejected the appeal and upheld the original judgment.
【Judge's Statement】
Labor relations have the characteristics of continuity, workers continue to provide labor, need to enjoy the right to rest to meet the physiological needs of physical recovery, and into family life, social life, in order to balance work and family life, to achieve all-round development. The employer has the right to approve and decide on matters related to the employee's right to rest, such as the employee's request for sick leave and rest, and the employer's approval behavior may directly determine whether the employee's legitimate rights and interests can be realized. If the exercise of the employer's examination and approval power constitutes an obstacle to the realization of the employee's right to rest, it will undoubtedly infringe on the legitimate rights and interests of the employee.
At present, some employers have "only examined and not approved" the employee's various applications, resulting in the employee's absence from work without approval, and then the employer makes a decision to terminate the labor contract on the grounds that the employee is absent from work. In this case, Mr. Ge applied to the company for a leave of absence based on the company's regulations and the need to enjoy the right to rest. However, the company did not approve it, and then the company terminated the labor contract on the grounds of absenteeism during the application for leave.
The core controversy in this case is whether the employee's non-attendance without approval can be considered absenteeism. Article 3 of the Labor Law of the People's Republic of China clearly stipulates that "workers have the right to rest and leave", and workers have the right to adequate rest in order to work continuously and healthily. The essence of the transfer is that the worker sacrifices his or her rest time to provide additional labor for the unit, and applies for the realization of the "past" rest right that belongs to him in the "future". In the case that the Notice of Clearance of Leave of Absence issued by the Company only clarifies that the transfer of leave is cleared within a limited period of time and does not pay overtime pay, the Company does not approve Mr. Ge's application for leave without legitimate and reasonable reasons, so the Company's claim that Mr. Ge is absent from work has not been supported by the court.
When exercising the right of self-management, the employer shall follow the principles of achieving the purpose of orderly management, not constituting an obstacle to the realization of the employee's major rights and interests, and not violating the purpose of the labor contract and public order and good customs. When examining and approving major rights and interests related to workers' right to rest, employers must follow the principle of good faith and not abuse their powers, so as not to leave the purpose of the labor contract of "obtaining labor remuneration and realizing survival and development" in vain.
Is the driving agent and the driving company an employment relationship?
Whenever night falls, you can always see surrogates dressed in uniforms, riding folding bicycles back and forth between the cities. In October 2011, Mr. Zhuang also became a substitute driver through a recruitment advertisement, he earned money through the mobile phone software developed by e company, and then the company charged 20% of the information service fee according to the agreement.
Once, Mr. Zhuang was fined 500 yuan by the company for not wearing work clothes. In the middle of the same month, the company signed a cooperation agreement with Mr. Zhuang on behalf of the driver. However, due to Mr. Zhuang's repeated malicious evasion of orders, less than half a year later, the company issued an announcement on its official website, stating that it had terminated its cooperative relationship with Mr. Zhuang. In this regard, Mr. Zhuang was not satisfied, and after applying to the local labor dispute arbitration commission for arbitration without success, he filed another complaint against Company E to the court, demanding that the company pay a total of more than 170,000 yuan, including double wage compensation for not signing a written labor contract, and double compensation for illegal dismissal.
Mr. Zhuang complained that he usually wore the uniform of the substitute driver, provided services to customers as a substitute driver and in his name, and charged according to the charging standard specified by the company. These facts fully meet the constituent elements of the labor relationship, although there is no labor contract with e company, but the two parties are actually an employment relationship. Although the driving industry is a service industry, because of its own characteristics, drivers have a certain degree of autonomy and flexibility. However, the driver's identity as an employee of the employer has not changed, and the personal affiliation has not changed.
As a company that provides professional driving services, e company argued in court that Mr. Zhuang said that according to the recruitment advertisement to apply for a driver, the so-called advertisement is only a form of external publicity, and there is no clear recruitment, when signing the contract, it is also explained to it that the two sides are cooperation agreements, the contract states the way Mr. Zhuang gets paid, and the company only extracts information fees, which can make it clear that the two sides are cooperative partners. In addition, wearing work clothes is to help the driver establish a good image, and it is also a cooperation agreement. The company only provides information, Mr. Zhuang needs to choose whether to sign a contract with the customer according to the information, this is not the labor relationship, whether to pay wages, employment methods, ways to obtain remuneration, etc. are the substantive conditions for judging the labor relationship.
The court of first instance held that the focus of the dispute was whether there was a de facto employment relationship between the two parties. As a substitute driver, Mr. Zhuang can work part-time or full-time, and the working hours are mastered by himself, which does not meet the criteria for identifying labor relations. And according to the cooperation agreement signed by the two parties, the two are cooperative relations. Mr. Guzhuang's various litigation claims based on the labor relationship had no factual basis and legal basis, and the court did not support them.
Mr. Zhuang believed that Company E had fined him RMB500 for not wearing a uniform, which was enough to prove that the company exercised its right of supervision and punishment over himself, so the court of first instance found that the two parties were wrong to cooperate and appealed to the First Intermediate Court again.
During the trial of the First Intermediate People's Court, the two sides submitted evidence again. The court held that, from the main facts, Mr. Zhuang did not have a fixed workplace, the working hours could be controlled by himself, and he did not obtain labor remuneration from the company on a monthly basis, combined with the industry characteristics of the substitute driver and the cooperation agreement signed by the two parties, the court held that there was no labor relationship between the two, so the various litigation claims raised by Mr. Zhuang lacked factual and legal basis and were not supported.
With the development of the economy and society, the driving service is gradually familiar to everyone and accepted, and the scope of the driving service is also expanding, and there are many types of drunk driving, tourism driving, and business driving. So, what is the relationship between the driver and the driving company? Does it have to be an employment relationship? In our view, this cannot be generalized, but it is still necessary to analyze in detail whether the substitute driver and the driving company meet the criteria for determining the labor relationship in light of the facts of the case.
In judicial practice, the criteria for determining an employment relationship usually include:
1. Management standards. It mainly means that the employee obeys the management of the employer and abides by the rules and regulations of the employer.
2. Production conditions standards. It mainly refers to the fact that the employer provides basic working conditions, including the place of labor, the object of labor and the means of labor, so that the laborer and the means of production provided by the employer can form a labor legal relationship between the two parties.
3. Remuneration standard. It mainly refers to the provision of labor by the employee to the employer, the payment of labor remuneration by the employer to the employee, and the payment of labor remuneration by the employer is an important symbol for determining the labor relationship.
4. Labor content standards. It mainly means that the labor provided by the employee is an integral part of the employer's business, and if the labor provided by the employee does not belong to the business scope of the employer, in general, there is no labor relationship between the two parties.
The core criterion is the management standard, that is, whether there is a relationship between the employer and the employee to manage and be managed, command and be directed, supervision and supervision. If the labor rules and regulations formulated by the driving company in accordance with the law apply to the driver, the driver is managed by the labor of the driving company, and engages in the paid labor arranged by the driving company, it may be determined that there is an employment relationship between the two parties, otherwise, the claim of the substitute driver that there is an employment relationship between the two parties will not be supported.
Specific to this case, according to the facts ascertained, although Mr. Zhuang must wear work uniforms, wear work cards, and charge according to the standards specified by the company, the work is completely arranged by himself, and he can open the mobile phone software if he wants to pick up the work, and he does not want to take the work and is not bound by the company, in this case, there is no situation in which Mr. Zhuang obeys the company's command, and it cannot be determined that he is accepting the company's labor management. At the same time, from the perspective of the cooperation agreement signed by the two parties, the e company provides information to Mr. Zhuang and collects information service fees, and the rest of the driving service fee is used as Mr. Zhuang's income, which shows that he does not obtain labor remuneration from the company, so the relationship between the two is not an employment relationship, but a cooperative relationship, and the two parties are an equal civil subject relationship, and the rights and obligations should be determined in accordance with the cooperation agreement.
What is the difference between being on duty and working daily?
In 2014, Ms. Hao joined a community service company as a central controller in the safety management department. When she was hired, Ms. Hao signed a one-year labor contract with the company, which agreed on the management of fire alarm information, the answering and processing of alarm calls, and the inspection of posts, etc., and both parties unanimously agreed that the post implemented a comprehensive working hour system. At that time, there were only 4 people in the department, and Ms. Hao had to work for 24 hours continuously and rest for another 48 hours.
At the end of March 2019, the company's position changed. The "Application approval form for job change" filled out by Ms. Hao was displayed as April 1, and on the same day, she also submitted the "Resignation Application", and filled in the "Personal Reason" in the exit application column.
Ms. Hao believes that between September 2017 and March 2019, she worked more than 1,000 hours of overtime, but the company only paid basic salary, and she asked the company to deduct the annual leave taken and pay overtime pay. In this regard, the company explained that the central control firefighters took stock of the fire cabinet equipment during the day, and checked the doorman in the duty room at night, and the duty room had a sofa to rest. "Night watch work is unproductive work temporarily arranged by the unit based on safety needs, not overtime." The company also mentioned that Ms. Hao implemented a comprehensive working hour system, not a standard working hour system. Therefore, the company should not pay overtime pay.
In May 2019, Ms. Hao's application for labor arbitration was rejected, and she filed a lawsuit with the court.
After trial, the court of first instance held that the evidence provided by Ms. Hao could not prove the existence of overtime and ruled to reject all her requests. Ms. Hao appealed again, requesting that the first-instance judgment be revoked, remanded for retrial or changed to the company in accordance with the law to pay her severance compensation for the termination of the labor contract, overtime pay and other expenses.
The court of second instance held that the focus of the dispute in the case was twofold: First, the reason for the termination of the labor relationship between the two parties, the company claimed that Ms. Hao left her job for personal reasons, and submitted an "Application for Resignation" to support it. The evidence submitted by Ms. Hao is not enough to prove that the two parties terminated the employment contract through negotiation, so the company did not need to pay economic compensation. The second is whether Ms. Hao's night work is on duty. First of all, the company arranged for Ms. Hao to continuously implement the 24-hour and 48-hour working hour system for a period of up to 17 months, which obviously did not meet the temporary characteristics of duty. Second, the company, as the management, failed to show the court the difference between Ms. Hao's night work and day work. Finally, ms. Hao began from 22:30 to 7:30 the next morning, and had to record the inspection of the post every hour, the work intensity was relatively large, and it was impossible to ensure sufficient night rest. In summary, it can be seen that the night work that Ms. Hao is engaged in is long-term and continuous, and the intensity is relatively large, so the night work is different from the duty, and the court of first instance found that it was wrong. In addition, Ms. Hao's actual working hours exceeded the statutory standard working hours, so the company should pay overtime pay for extended time.
In summary, the court of second instance ordered the company to pay Ms. Hao 30,000 yuan of overtime for extended time.
"Duty" usually refers to the employer's arrangement for the employee to engage in duty tasks unrelated to its own work due to safety, fire protection, holidays, etc., or the employer arranges for the employee to engage in duty tasks related to its own work, but the duty period can be rested. Compared with normal work, duty is temporary and unproductive, and even if it is related to their own work, they can rest during the duty. It is precisely because of the temporary and unproductive nature of duty, as well as the characteristics of resting when engaging in labor related to one's own work, so it is generally considered that the labor intensity of duty is much smaller than that of normal work.
In the case, the company arranged for Ms. Hao to continue to implement the three-shift work system of 24 hours off and 48 hours for up to one and a half years, which obviously did not conform to the temporary characteristics of duty. As a management, the company failed to show the difference between Ms. Hao's night work and her normal daytime work, and the evidence showed that the night work was more intense and could not guarantee adequate night rest. Therefore, Ms. Hao's continuous night work is not of a different nature than that of duty. After calculation, Ms. Hao's actual working hours exceed the statutory working hours, and there is a fact of overtime, the company shall pay overtime pay to Ms. Hao in accordance with the statutory standards.
Although the difference between "duty" and "overtime" is only one word, for workers, whether they can get the corresponding labor remuneration and how much labor remuneration can be obtained are very different. Since China's laws and regulations have made detailed provisions on overtime hours and overtime wage standards, there is sufficient legal basis for employees to claim overtime wages from employers after overtime work. However, for duty, China's relevant labor laws and regulations are not clearly stipulated, which leads to no clear legal basis for whether the employee can claim labor remuneration from the employer on duty and according to what standard. In practice, some employers even disguise the employee to continue to provide labor outside the statutory working hours in the name of duty, and then do not pay overtime wages on the grounds that they do not have to pay labor remuneration on duty. This is the case in this case. This kind of behavior deprives workers of the right to rest, violates the right of workers to obtain labor remuneration, and is not conducive to the recovery and reproduction of labor; and the physical and mental exhaustion of the laborer group and even the associated negative emotions will be fed back to society in some form, which is obviously more harmful than beneficial to the whole society.
This edition of the article / reporter Wang Jing