[introduction to the lawyer of this case] Liu qinqun, partner of Tongfang law firm. He is mainly engaged in civil and commercial litigation business and non litigation business such as enterprise legal counsel. He has rich experience in civil and commercial affairs such as construction, labor and family affairs.
[key points of judgment] in this case, we should first examine whether the labor relationship between the plaintiff and the defendant was dissolved on June 30, 2014, and whether the plaintiff and the third party established a labor relationship on July 1, 2014. On the basis of confirming which subject the plaintiff has a labor relationship with, review whether the termination of the labor contract is legal. If it is illegal, the termination notice can be revoked, and a judgment can be made to continue to perform the labor contract.
[basic case] Li filed a lawsuit with the people's Court of Shenhe District, Shenyang, requesting: 1. Cancel the notice of termination of labor contract made by the defendant on January 19, 2017, and the defendant continues to perform the labor contract with Li; 2. The defendant paid wages from April 2017 to March 31, 2018. 3. The defendant is requested to pay double wages for the period from July 2014 to January 2017 when no fixed-term labor contract was signed. Li started to work for the defendant in 1995. A three-year labor contract was signed on July 1, 2011. After the expiration of the contract, the two parties did not sign a labor contract, but Li has been working in his original position. The defendant signed the labor dispatch contract with the third party. In November 2016, Li adjusted his work without consulting and communicating with Li, and Li raised an objection. The defendant served the notice on giving punishment to Li and made a punishment to stop Li's work. On January 19, 2017, the defendant sent the notice of termination of labor contract to Li through the company's human resources director Wang by wechat. The reason for termination was that Li seriously violated the company's rules and regulations. At the end of March 2017, the third party sent a working letter to Li, including the notice of terminating the labor contract. During the litigation, the labor contract provided by the third party, the rules and regulations provided by the defendant, and the training sign in form; The signature of "Li" on the stub of the labor contract termination certificate provided by the defendant is not his own signature. The salary bank statement provided by Li shows that the salary was paid by the defendant from July to November 2014, and the bank statement after that does not show the name of the salary paying unit. The third party claimed that the salary was paid by him since July 2014, but no relevant evidence was provided. Li said that he always believed that the salary was paid by the defendant, and it was unclear whether the payment subject had been changed. Li's salary was suspended from April 2017 after the third party sent the work letter.
[judgment result] the judgment of the first instance: I. The notice of terminating the labor contract with Li made by the defendant on January 19, 2017 was revoked, and the indefinite labor contract relationship between Li and the defendant was restored from January 19, 2017; 2、 The defendant paid a lump sum of 4735.71 yuan to Li in April 2017 within 10 days from the date when this judgment became legally effective; 3、 Other claims of Li were rejected. The case acceptance fee is 10 yuan and the appraisal fee is 11400.00 yuan, which shall be borne by the defendant. The Shenyang intermediate people's court rejected the appeal and upheld the original judgment.
[reason for judgment] the people's Court of Shenhe District, Shenyang City held that the legitimate rights and interests of workers should be protected by law; The labor contract of a laborer shall be protected by law and shall not be terminated illegally; During the duration of the labor contract, the laborer shall have the right to obtain labor remuneration according to law. According to Article 6 of the provisions of the Supreme People's Court on evidence in civil proceedings, the defendant shall bear the burden of proof for the legality of the labor contract with Li on January 19, 2017. In this case, Li has been working since the establishment of the defendant's predecessor enterprise in September 1998. After the defendant said that the labor relationship was terminated on July 1, 2014, Li still worked at his original post. In this case, the defendant made an adjustment to his work without consulting with Li. Only because Li expressed an objection to the adjustment in wechat and there was no legal termination of the labor contract, the defendant sent a notice of termination of the labor contract. Moreover, the certificate of termination of the labor contract submitted by the defendant was not signed by Li. This notice cannot prove that the defendant and Li terminated the original labor contract on June 30, 2014. Although the defendant signed the dispatch agreement with the third party, the labor contract provided by the third party was not signed by Li after judicial appraisal; The issue that the defendant and the third party claimed that the third party should pay social insurance and pay wages (including the wages in February and March 2017) for Li was caused by the existing assignment contract relationship between the defendant and the third party. This claim and evidence cannot prove that the third party and Li signed a new labor contract and established a labor relationship on July 1, 2014. The defendant did not provide relevant evidence to prove what rules and regulations Li had violated and whether there were serious circumstances. Moreover, the rules and regulations "training attendance form" provided by the defendant was not signed by Li after judicial identification, which could not prove that Li had fulfilled the obligation of informing. Only because the defendant adjusted his work without consulting with him in advance, Li raised an objection in wechat. Although the language was inappropriate, it was not enough to terminate the labor contract. Moreover, even if Li was not aware of the relevant rules and regulations, it could not be determined that Li's behavior was a serious violation of the company's rules and regulations. To sum up, it is illegal for the defendant to terminate the labor contract on the ground that Mr. Li has seriously violated the company's rules and regulations. If the double wage without a fixed-term labor contract has exceeded the arbitration time limit, it will not be supported.
[relevant laws] Articles 4, 14, 39, 42 and 48 of the labor contract law of the people's Republic of China, Article 7 of the regulations for the implementation of the labor contract law of the people's Republic of China, paragraph 1 of Article 27 of the labor dispute mediation and Arbitration Law of the people's Republic of China, and Article 6 of the provisions of the Supreme People's Court on civil litigation evidence
[lawyer's opinion] the employer shall bear the burden of proof for the dissolution of the labor contract and the legality of the dissolution of the labor contract. In this case, the defendant claims that the labor relationship has been dissolved before, while the plaintiff established the labor relationship with a third party, which involves the legal provisions of labor dispatch. The labor relationship between the employee and the dispatch company should be the labor contract signed by the employer and the dispatch company at the same time. Otherwise, the labor relationship between the employee and the dispatch company cannot be recognized. Social insurance relationship is not, of course, the main recognition standard of labor relations. In this case, it is obvious that the plaintiff and the defendant have always had a labor relationship. In addition, if the employer terminates the labor contract on the ground of serious violation of the company's rules and regulations, it shall bear the burden of proof for the legality and delivery of the contents of the rules and regulations and the serious violations of discipline by the employees, otherwise it will be deemed as illegal termination. In practice, it is not recommended that the employee should continue to perform the contract in the case of termination by the employer, because the trust of the labor and capital relations is reduced, and it is difficult to carry out work again. Therefore, it is recommended to require compensation for illegal termination of the labor contract.