Case playback labor dispute lawsuit typical

[Objective] the labor dispute case is Shen Binti Beijing labor lawyer2010Years of labor dispute cases in a more typical parts, the applicant (the plaintiff) lost in the arbitration stage, stage of the litigation attorney and re organize ideas obtained after overall success. Shen Binti lawyers have the labor dispute case as a typical case in labor disputes litigation lawyer, dotting the labor law teaching. The win and great pressure in the second instance court is to maintain an important reason for the first instance decision on the stage of the proceedings: we insist that the court agreed that the labor dispute case does not belong to the labor remuneration of the agreement is not clear, the principle of the presumption of wages so it is not applicable to the "labor contract law" article eleventh. Share the case agent opinions with you, for the exchange of.

The word

-* * v. Beijing& &Media Advertising Co., Ltd. of labor dispute case agent

Respected judge, judge:

Beijing tannin law firm accepts * * (the plaintiff) Commission, appointed me as * * v. Beijing& &Media Advertising Co., Ltd. labor dispute case agent. The lawyer comprehensive case, the focus of the disputes of this case, make the following agents:

1The plaintiff, a month10000Yuan or3000Yuan?

1The defendant claims the plaintiff) a month3000Yuan (Note: this has been the Arbitration Commission support in the arbitration phase), but only to provide a pay social security instructions to calculate the monthly salary, but the actual situation is laborer social insurance base pay and the real wage is not inevitable connection: in the current environment, non-standard employment by the employer not in accordance with the actual wage workers to pay social insurance situation is still more common. In this case, if not timely according to law because the defendant signed labor contracts, causing the plaintiffs have no direct evidence for their real wages, and the defendant is also taking a would infringe the plaintiffs legitimate interests of social security payment base as the plaintiff wage as the verdict evidence, and also can obtain the arbitration and court, only encourage some non-standard employment units to avoid more try various devices to sign labor contract, pay social security and not, to seek illegal interests more in labor disputes, contrary to the legislative intent of the "labor contract law".

Therefore, the description could not be identified as the real wage level of evidence.

2The arbitration phase commit) in the "code of conduct", catalogue sixth item displays the company has "salary", but the defendant has only provided the "code of conduct" directory and its first two page content, hide will have a significant relationship with the case of the salary system. We have every reason to believe that the defendant and the plaintiff identified conceal the wage related evidence material. According to "the people's Republic of China labor dispute mediation and Arbitration Law" provisions of article sixth,...... The evidence relevant to the dispute matters is controlled by an employer, the employer shall provide; the employer does not offer, it shall bear the adverse consequences. Therefore, if the defendant cannot provide valid evidence to prove that the plaintiff should bear the adverse consequences of wage, no proof.

3This case is not applicable) "labor contract law" the principle of presumption of wages eleventh. "Eleventh, the employer fails to conclude a written labor contract in labor at the same time, and the workers agreed remuneration is not clear, the new worker's remuneration the standard specified in the collective contract; there is no collective contract or collective contract does not specify, equal pay for equal work."In this case, the plaintiff and defendant to the plaintiff's wages in the entry with a clear verbal agreement no objection, objection is that the amount of each different. Therefore, does not belong to the labor contract law article11Regulation and labor remuneration agreed upon is not clear situation. Labor contract law does not apply the principle of presumption of salary.

4Plaintiff2002Years##Film TV art school performance in professional college degree, there is evidence of prior to joining the defendant, has been in the industry7Years of work experience, has a number of large projects in the film and television industry experience. During the job as director of the defendant, the defendant is above the level of the staff (the plaintiff has evidence to prove that the defendant company, staff will be divided into two types: general staff, deputy director, the director level staff), from the intuitive judgment, the plaintiff's salary may not only3000Element.

2On the plaintiff, the defendant does not meet the recruitment conditions of labor relations is legal?

The defendant terminates the labor contract the reason is because the plaintiff does not meet the conditions of employment, the rescission reasons not established. Reason.

1) according to the labor contract law article nineteenth, the probation period shall be included in the term of the employment contract. Labor contract only the probation period, the probation period is not established, as the term of the labor contract. But in this case the defendant and the plaintiff did not sign labor contract, the probation period is not set up, the probation period is not established, talk about what the basis the probation period does not meet the employment conditions to terminate the labor contract with the plaintiff.

2) step, if the defendant and plaintiff orally agreed trial period valid, the defendant is not likely to do not meet the conditions of employment on grounds of termination of labor relations. The entry is the trial period, the defendant and the plaintiff agreed orally for one month, in this regard, the defendant in the course of arbitration submitted evidence "staff return" this evidence as evidence, the evidence, the plaintiff for a trial period of one month, during the period of2009Years11Month2To2009Years12Month1Day. How, in the12Month9Day, the probation has been after nine days later, the defendant is also to does not meet the conditions of employment and the dissolution of the labor contract?

In the case of termination the labor relation is the truth is:2009Years12Month9The same day, the defendant to the plaintiff three options:1A pay cut, demotion,2Again, the probation period,3Company, termination of labor relations, the plaintiff chose to accept the termination of labor relations. According to the "labor contract law" article forty-sixth (two), by the employer in accordance with the law the thirty-sixth regulation to the laborer proposes to terminate the labor contract and dissolution of the labor contract agreed in consultation with the workers; shall pay economic compensation to the laborer, therefore, the defendant shall pay to the plaintiff the dissolution of the labor contract of economic compensation. To refuse to pay, according to the "Tenth way" of economic compensation of breach and termination of labor contract: "the employer terminates the labor contract, no economic compensation to the laborer in accordance with the regulations, in addition to full economic compensation issue, must pay additional economic compensation according to the amount of such economic compensation fifty percent".

3In this case, whether the plaintiff in the first instance stage has the right to add asked the defendant to pay the plaintiff2009Years11Monthly salary10000Yuan25%Economic compensation2500Element, as well as additional defendants to pay economic compensation for termination of the labor contract5000Yuan50%Additional economic compensation2500Yuan new claim?

The plaintiff argues that the plaintiff, in view of the proposed25%And50%The request and the request can not be separated, the plaintiff has the right to add new claim in court stage. Legal basis is "the Supreme Court on the law applicable to the Labor Dispute Cases Interpretation of several issues" sixth article: "the people's court accepted a labor dispute case, the increase in litigation request, such as the litigation and litigation of labor disputes are indivisible, should combine the trial".

4In this case, the plaintiff is entitled to remuneration court change calculation error?

Consider the plaintiff, the plaintiff has the right to apply to the court to change the calculation of labor compensation error. Legal basis is "explain" the Supreme Court on the trial of labor dispute case applicable legal problems of twentieth: "for recourse labor remuneration, pensions, medical expenses and treatment of inductrial injury insurance, economic compensation, training fees and other costs associated with such cases, payment amount is improper, the people's court may be changed".

4On the termination of the labor contract, the original defendant reason who bear the burden of proof?

The plaintiff think, about the original defendant in2010Years1Month10On the dissolution of the labor contract by the defendant bear the burden of proof. The plaintiff has provided evidence that the defendant at2009Years1Month9Make labor relations since the two sides2010Years1Month10The lifting of the declarations and decisions ", according to the Supreme Court on the law applicable to the Labor Dispute Cases Interpretation of several issues" thirteenth: "to make due to the employer's dismissal, removal, dismissal, dissolution of the labor contract, to reduce the calculation work of labor compensation, and other decision of the labor dispute, with the employer shall assume the burden of proof".

To sum up, request the people's court to ascertain the facts, to restore the truth, safeguard the legitimate rights and interests according to law.

Yours sincerely

Beijing Chaoyang District people's court

                                          Beijing city law firm tannins

          Agent: Shen Binti Ceng Suzhen

        2010Years6Month9Day 

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Beijing Shen Binti labor lawyersDongcheng District: Beijing Dongzhimen South Street3Actually building No.18Building smell law firm; E-mail:Shenbinti@yahoo.com.cn Business telephone:(+86) 15301115671(+86)13661313967 ;Interactive blog:Http://blog.sina.com.cn/shenbinti

Shen Binti lawyers:Shen Binti, female, Beijing Wen law firm partner, Beijing City Bar Association Youth Committee, the Beijing municipal labor and Social Security Law Association, dotting the labor law lawyer, senior trainer, Xiamen University, master of law, Beijing labor law experts. Research on the legal disputes have long been engaged in lawyer Shen Binti, focusing on the cases of labor disputes and labor law, labor law training as a special consultant. Address: Beijing city Dongcheng District practicing Dongzhimen South Street3Actually building No.18Buildings; e-mail:Shenbinti@yahoo.com.cn Business telephone:(+86) 15301115671(+86)13661313967 ;Interactive blog:Http://blog.sina.com.cn/shenbinti