As the processing enterprise management personnel or legal personnel will inevitably encounter the labor dispute, of which the most important is to deal with the labor dispute arbitration and litigation, handling labor dispute arbitration and litigation should pay attention to what the problem, handle which links to avoid errors due to the improper disposal, losing?

 

  A, how to process problems of labor dispute arbitration and litigation right

 

In 2012 October, Shanghai City, a Minhang District enterprise received from the Minhang District labor dispute arbitration committee of the summons, notice to the company in November 10th in the Minhang labor dispute arbitration committee for arbitration case; the original company of a former employees about the labor dispute arbitration application to the Minhang District labor dispute arbitration committee, the company said in its work in a company has not been and the signing of a written labor contract in the application, the request unit pay double pay the difference compensation; having received a summons the arrangement of enterprise leadership administrative personnel manager Chen Mouchu, Chen after consulting the lawyer that due to was not signed a written contract is the staff deliberately delay, the company also specially sent to the written notice signed labor contracts and the sign; it should be said that these proofs, the company has victory in the hand, Chen is ready to wait until November 10th to file the arbitration tribunal on time, and submits the ready material to the arbitrator, the arbitrator told him has been submitted evidence time, if the other party dissent, the arbitration tribunal shall not on the evidence of cross examination. Sure enough, after the hearing each other lawyers = these temporary submission of evidence shall not be approved. The arbitration tribunal ordered the companies to pay eventually conclude a labor contract with employees without double pay the difference.

1, the enterprise staff deliberately delay not sign labor contract evidence why or lose?

Enterprises in this case there is sufficient evidence to support the enterprises to refute the staff put forward the application for arbitration, could be easily won in the arbitration, but due to a careless missed the submission of evidence time, lead to hold its favorable evidence cannot be recognized and certificate for the benefit of the company fact, eventually lead to defeat in the arbitration.

China's "labor dispute mediation and Arbitration Law" for the labor dispute arbitration cases not specified time limit for adducing evidence, time throughout the arbitration institutions mostly refer to "Civil Procedure Law" sixty-fifth article second paragraph "the people's court according to the party's positions and trial, determine the parties shall provide evidence and term."

Usually served notice of court or arbitration organization in the process file will also send "Notice of proof", this file is often ignored by enterprises, in fact should be read, period the enterprise to submit evidence, are the rules, if the enterprises in this period not to complete the collection of evidence, it shall timely communication, avoid late production the arbitration agencies refuse.

2, how to avoid the program led to the failure of the arbitration or litigation defeat

The labor dispute arbitration or litigation is program strong activity, enterprise that is to be in substantial evidence for beneficial, also want to find loopholes in the procedure and avoid committing errors in the program:

Review each other arbitration or litigation request first, from the procedure is defective

"Labor law", "labor contract law", "labor dispute mediation and Arbitration Law", "Civil Procedure Law" and other laws to the enterprise staff for labor disputes about labor arbitration or litigation made detailed provisions, as counsel or relevant person in charge upon receipt of application or indictment should first examine the arbitration request is conform to the standard:

 First of all, whether it belongs to the category of labor dispute apply items

According to the "labor dispute mediation and Arbitration Law" provisions of article second[1], only belong to the provisions within the scope of labor dispute to the labor dispute arbitration entrusted with the labor arbitration, for example if the enterprise staff promotion unfair filed a labor dispute arbitration, disputes arbitration obviously does not belong to the category of labor law to solve, may request the arbitration tribunal to reject the request for arbitration.

Secondly, the applicant filed for compliance with aging

Prescription litigation and arbitration of the applicant or the plaintiffs filed a request for arbitration or litigation request must comply with the provisions of the law, according to the "labor dispute mediation and Arbitration Law" article twenty-seventh[2]Regulations, labor arbitration shall in the related reasons within one year as of the date the arbitration filed an application, if after the examination of the request for arbitration, the application filed from the date of occurrence of such incident has been more than a year, has exceeded the limitation, can request to reject the request for arbitration.

For example, frequently the case, employees in the labor contract during the unit according to the actual situation to change their jobs, but the in-service period did not apply for arbitration but the turnover, so this might distance work changes has been over a year, the arbitration request not supported.

Again, whether to have jurisdiction over the arbitration organs filed

According to the "labor dispute mediation and Arbitration Law" provisions of article twenty-first[3] Provisions of the labor dispute, a labor contract or the local labor dispute arbitration committee under the jurisdiction of the employer, if the examination reveals that the agency is not a labor contract is performed or the employer where the labor dispute arbitration commission, the application for arbitration is not in conformity with the law, to mention objection to jurisdiction.

SecondReview of the respondent, procedural requirements, make the respondent preparations

Review procedures should not only to find out the existing problems of the other program, will be shownWePleading must comply with the rules of procedure:

FirstSubmission of evidence, and defense opinions according to the arbitration or court requirements

Usually, the court and the arbitration tribunal will specify the submission of evidence and pleadings date in the circular file, these dates may be submitted within a certain period of time of receipt, you should prepare the evidence material and reply in time according to the situation, if the evidence collection difficulty should be timely and arbitrator or judge connection requirements deferred proof, but the evidence for the delay can get permission was not determined, therefore should be actively preparing for all the evidence, or it may miss the time limit for adducing evidence, leading to adverse consequences.

SecondlyWell, the courtThe program of work

The trial court is one of the most crucial, should do what procedures the work ahead of time

1),HandleEntrustment

    If the court by employees of the company shall be made by the Proxy Companies, the company issued orders, orders a blank file usually send out in the arbitration documents, fill seal can be.

If you need a lawyer in court, you need before handling the relevant agency agreement and commissioning procedures.

2),Remember hearing time and place of the court session

    This is a point we often neglect leads to poor, sessional time must not be missed, the Shanghai area is very large, if the need from the city to the outer court, attention must be paid to the time of the session and travel arrangements, especially the morning session, at nine thirty, don't miss it.

    Also the important place of the court session, according to a designated place of the court session, most probably it did not actually happen. Don't go to court, because some courts under the tribunal was not in court this part, such as the Pudong court may on clove Road headquarters, may the court in the Jinqiao, even in the original Nanhui court is located, if not clear may be the wrong place.

3),Finishing a good original evidence

    We usually in evidence within the period of arbitration or court evidence, but this is a copy of the original proof, but the evidence in the trial to trial for cross examination. If the parties do not carry the original evidence cannot lead to confrontation situation occurs frequently in practice, light may cause the trial cannot proceed, heavy may be identified the evidence can not be checked in the burden of proof and the original adverse consequences.

4),Complaint or appeal

After the trial, arbitration or court ruling period prescribed by law, on receipt of the award if the verdict against the can to the court or the appeal (to accept arbitration results may bring a suit to the court, on the first instance judgment against may file an appeal);

If you are not satisfied with the decision results should be according to the judgment documents indicating prosecution or court of appeal in the corresponding period within the corresponding, time can not exceed the development period, the court of appeal remains shall comply with the relevant provisions of jurisdiction.

 

Two,Collect and organize evidence

 

    At the end of 2011, Shanghai City, a company in Pudong New Area Wang filed by employees labor arbitration application, the arbitration application called the company terminates the labor contract law, labor contract law require companies to pay compensation; the company designated legal departments appear in court. Companies that release and Wang Mou of the labor contract is made according to company policy decision, there is no illegality; company to arbitration submitted Wang for drink in company with the colleagues quarrel and pull with the leaders of the Department by the company punishment of the penalty decision, the decision on punishment book company personnel department seal; at the same time submit the staff manual, the employee handbook regulations chapter labor discipline: Employee shall safeguard the normal order of the workplace, the fight can be expelled from the treatment in the workplace. But the trial Wang denies having a fight, only acknowledged and leadership dispute. The arbitration tribunal thinks via cognizance, decided the company submitted by the company made a unilateral punishment, can not prove that Wang had serious plot fights with colleagues, he ordered the company to terminate the labor contract law of compensation.

1,Why do companies will lose

    Decision, in this case for a serious violation of labor discipline behavior only submit a company that made the punishment decision, but the decision has not been Wang signature recognition, the evidence of the effectiveness of certain defects; in fact, if the company is ready to stage a careful analysis of the case will be found, Wang exists serious violations the company's labor discipline fighting behavior is the focus in fact, evidence of the organization should provide more detailed evidence, in fact the dispute, Wang Mou because impulse did win a department leader a palm, the cracks at the corners of the mouth still units near the simple treatment and clinic prescription and anti-inflammatory drugs at the same time, the presence of employees. But the company mistakenly believe that as long as the decision was made to prove the fact of punishment, not to bear witness to the arbitration tribunal for the witnesses to appear in court, did not submit the testimony of witnesses, nor submit department head injured patient, if coupled with the evidence, Wang's serious violations of discipline is the fact that the arbitration tribunal can be identified.

2,How to prepare evidence

    The first,Evidence of sex: relevance, authenticity, legitimacy

     The evidence shall be true: evidence required to submit evidence is the objective existence, the use of a large number of labor arbitration cases in practice of documentary evidence, then the requirements must be original. For example, we have to prove and employee conclude a labor contract, must be presented in the original contract signed by the employee, if the original is lost only a copy, the authenticity of the evidence will be under suspicion.

     The validity of evidence forms and should be made legal evidence, for example, formed in the recording mode of evidence may exist legitimacy and can not be accepted.

     The relevance of evidence requirements between the evidence and the facts to be proved there is a link, can prove this fact, and form a complete chain of evidence. For example, we want to prove that employees have suffered because the crime criminal punishment shall provide legal documents corresponding, if we commit a criminal judgment as evidence, but the verdict according to the facts and the judgment time are not during the existence of the labor relations, then the two is the relationship does not exist, so the evidence is not conscious of relevance, not that we want to prove the facts.

Second,Collecting evidence to fully

     If the litigation or arbitration compared to a battle, then the evidence is the ammunition, only reserve enough ammunition to win, must not think some evidence is not important, not essential but not to collect any seems to be of no great importance, otherwise, the evidence may be the key to the case reversed.

     Based on the facts to be proved on the list, can prove that the materials, according to the clues to collect relevant evidence. For example, we have a clear need to prove their own do not want to conclude a labor contract and delays in fact, all signed with the text of the labor contract when the materials are likely to become useful evidence, we can in this range to search and collect: to employees under the contract text and written materials by employees sign, the company announced notice the conclusion of labor contracts in the web site or the public, to employees signed contract text collection notice etc..

    Third,Evidence should be comprehensive analysis

     We require evidence shall be fully, but also a comprehensive analysis and trade-offs. Based on comprehensive analysis of all the evidence, we may find some evidence materials and we are going to prove the facts are contradictory, or we prove several, including an evidence to prove a fact but can lead to another to be evidence of the fact that the question or contradiction, then comprehensive analysis to decide whether to submit the evidence.

Fourth,Making the list of evidence

     Tidying up the evidence must be based on the evidence proved between categories and contact list produce evidence, evidence is not only beneficial to the referee organization list to understand the evidence and facts, but also conducive to the comprehensive analysis and management to provide clear evidence, clues for the trial, to avoid trial has found no evidence of embarrassment.

 

Three,Defense opinions and court outline

 

     In 2012 October, Shanghai City, a company in Pudong New Area is the staff of labor arbitration filed application, required to pay overtime wages; because the labor arbitration commission arbitration award is not made within the statutory period, the case was directly transferred to the Pudong New Area people's court. The hearing process, because the company dispatched personnel lack of litigation experience, not only did not submit a written defense to the court, is not ready to improve trial outline, leading to adoption of court hearing process more employee opinions and requests, finally ordered the company to pay overtime wages to employees.

1, why the company will lose

     In fact, the staff request has many facts and legal flaws, but because the company did not propose a powerful and lost the opportunity to refute. Not fully prepared for the trial, is the main reason leading to the losing.

     Reply to the application for arbitration or lawsuit against documents, documents of the applicant or the defendant is the key to the tribunal to express their opinions, written reply can let the arbitrator or judge to understand refuted opinions and reasons the applicant or the defendant, in many cases before the trial judge had formed opinions generally, if not in reply to fully explain the objection and reasons may lead to adverse consequences.

     Hearing the outline is respondent or defendant's battle plan, without a complete plan only in the trial is limited to passive.

2,How to write a reply

 

The first,The reply should be targeted

     The respondent for arbitration or litigation request, according to the applicant or the plaintiff requests to refute them one by one. The core of the arbitration or litigation request is the fact and law. The reply to the facts refute them one by one, was compared with the evidence.

     For example, the applicant to submit their work long hours and required the company to pay overtime requests. Here is the fact that the employee to work overtime for a long time, employees may submit a punch card records, we need to counter punch card records can prove their time away from the company, does not prove that it is in the company to work overtime. The company can provide the company overtime system, approval process, and how the company arranges overtime work overtime and confirm the situation. Through these statements of facts denied employee punch record is not enough to prove the existence of overtime.

    The respondent has targeted for those able to support the arbitration or litigation request to focus on refutation. For example, requests to terminate the labor contract law to pay compensation, but in fact expressed repeatedly mentioned that companies often work overtime (does not require overtime pay), then for the overtime a fact can not comment.

Second,The reply to the full

     The reply is to refute the fact basis, to refute the legal basis; the facts to refute them one by one, the legal basis for the proposed if there are mistakes pointed out one by one.

 

3,How is itWrittenThe court outline

 

 The court is hearing the outline plan, should according to the trial procedure to.

     The main part of the trial court usually include (Zhong Caiting) - proof evidence - the court debate, court outline should mainly focus on these aspects.

     The investigation stage mainly check the basic situation, both parties to the dispute between the parties that clarified, this phase will confirm the facts, if both sides accepted will be documented; the court outline this part should be recorded in all cases, such as employee into the company, the labor contract is signed between the labor contract, the basic situation and so on, to preparation of the arbitrator or judge questions.At the same time, the arbitration tribunal may concern also should make some preparations, such as company system, work methods peripheral problems.

     The burden of evidence links with other court outline evidence presented by analysis, whether real, legality, relevance and can prove the facts of the caseHave questions about evidence; focus to prompt quality certificate;If the other trial presented new evidence should be said is not recognized or not cross examination.

     Court debate stage outline should according to the request of the facts and legal basis by the opposition rebuttal, petition or complaint can be listed the reply opinions for reference; for new possible or modify claims should be predicted and formulate plans.

 

Four,To participate in the trial

    In 2013 April, Shanghai City, Yangpu District a company employee filed by the labor dispute arbitration application, the application referred to as the company is not in accordance with the provisions for the payment of social insurance, require the company to repay; at the same time, require companies to pay during the overtime a total of more than 1 yuan; after receiving the notice, the company believes that its application for no reason, no reason; the company decided to appear in court by 1 administrative personnel and the staff of department manager; during the trial, due to the presence of conflict the employee and manager, recriminations even yell to be the arbitrator has repeatedly stopped, the reason for the social security do not handle the employee fails to submit the reasons (one photocopy of identity cards and other documents to the company also delay especially involving) employee's responsibility is not fully explained and argumentation, the arbitral tribunal staff's request.

 

    1, the company had any lessons

    Obviously, in addition to the company itself does not apply for security and failing to pay overtime, the hearing is also very failure: inadequate preparation, the argument has not the request for arbitration, court personnel and not clear.

    2, how to do the work of trial in court

    First, before the court should do all the preparatory work, the preparation work including the ideological and material preparation

    The hearing before the court personnel should be familiar with all the case materials, including the case facts, evidence, application, company excuse, legal basis, evidence material; these should do a good job in the basic case materials, finishing written pleadings and the court outline to rotten ripe in the heart.

    The court also should be ready all the materials, especially to the trial material inspection. First of all have to be ready for the proof of identity materials, usually in the arbitration of these materials in the trial of the first session to submit to the court, including the company's business license copy, the company commissioned agent trial attorney, agent ID, the identification certificate of the legal representative. Here we should pay special attention to two points: the agent should carry identity cards for inspection; identification certificate of the legal representative is the company issued documents, is not equal to the legal representative of the identity card, do not confuse.

The trial in second, under the command of the arbitrator or judge

Arbitration or litigation to follow certain procedures and steps, the arbitrators and judges is the organizer and director, court should obey the command, according to a statement of fact, burden of evidence or request the judge of a debate. We often see is in fact a mixed debate stage, in adducing evidences and to make statements of fact, these are not professional performance may affect the trial or even affect the arbitrator or judge's judgment.

   Third, speak to the

First of all, the speech audience is the arbitrator or judge, not the other party.

We according to the arbitrator or judge questioning or investigation of the link in the facts of speech, usually by the applicant or the stage of the first statement, the respondent or defendant after the statement; in the stage of the statement to listen carefully, for which in fact does not match the situation to record, in a statement one one pointed out to the arbitration tribunal or the courts. Avoid by all means in the trial because the other party misrepresentation can interrupt each other, self speech, this speech and not for the arbitration tribunal noted or recorded, will only increase antipathy, may also lead to the omission of other important facts.

The statement should pay special attention to the arbitrator or judge's questions, for which the question to give a simple, clear, accurate answer, don't Equivocation, don't drag in all sorts of irrelevant matters, give an irrelevant answer.

Secondly, speak to the fact and law basis for claim

Arbitration and litigation only according to the request of the parties to investigate and confirm the courtroom speech, only on the fact and legal dispute can, in fact not to involve employees a statement of fact beyond the other, such as not to evaluate the level of employee work attitudes or moral, unless these facts and employee requests directly.

The most specific and should seek for the legal terms, don't confuse in the legal basis, such as did not sign labor contract compensation standard double salary request terms and terminates the labor contract law on the similarities and differences, we should distinguish the.

Again, according to the request and pay special attention to the facts on the basis of the court added, can answer and the answer that, if need to supplement the evidence shall be submitted to the arbitration tribunal or court.

   Fourth, cross examination carefully

A ring cross examination is very important, before the court session, we usually have to evidence copy is analyzed, which is true, which may be problematic; for the questionable evidence shall be checked carefully in evidence, look at the original and copy are the same; the original look is not be forged or altered. For the questionable evidence points to the arbitration tribunal or court said one one, not missing.

   Fifth, the court debate to be found

The court debate to solve two problems:

   First, the applicant or the plaintiff to provide evidence to prove the facts.

Through the investigation and proof quality certificate, statements are both facts and evidence is clear, the debate is to debate clear evidence can prove his claims.

   Secondly, the arbitration or litigation request whether there is a legal basis

   There are legal provisions in order to obtain legal conclusions based on determining the fact also. For example, the staff can ask the company for failing to sign labor contract compensation, but not the same position, because the company on the contribution of colleagues to promotion that injustice, claim for compensation.

Therefore in the trial should be closely around the two aspects of the debate:

First of all, what is the problem with other evidence, Is it right? Can form a complete chain of evidence to prove the facts; if you think the other evidence can not prove his claims, is the existing problem and loopholes in the link, to point out and analyze the, can not be generally said that evidence can not prove the facts.

Secondly, the legal argument to refute the legal basis of error and bias of legal interpretation, usually as the law does not the fundamental basis of the occurrence of fault, we need to pay special attention to the other specific claim is based on the correct calculation basis and, for example, the loss on the basis of correctly, make compensations according to what the standard calculation? By what standard length compensation settlement, is three times higher than the editorial wage? These are we need according to the specific legal provisions to review, if found to be presented on the debate.