[Case Analysis] Appeal petition requesting confirmation of factual labor relationship Case analysis on labor relations

Civil Appeal

Appellant: Wang XX,

Appellee: Nantong XX Labor Service Co., Ltd.

The appellant was involved in The respondent, Nantong XX Labor Service Co., Ltd., received a civil judgment (2012) Gao Minchu Zi No. 1120 from the Rugao City People's Court on July 21, 2012, in the case of labor dispute settlement. It is now appealing against the judgment.

Litigation request:

1. The Rugao City People’s Court (2012) Gao Minchuzi Civil Judgment No. 1120 shall be revoked and a separate fair judgment shall be issued.

2. The judgment was made that the appellee should pay the appellant 2,964.00 yuan for the loss of medical insurance benefits caused to the plaintiff by its failure to apply for medical insurance;

3. The judgment was made that the appellee should appeal to The person should pay the double wage difference of RMB 24,437.00 (3,491*7) due to the failure to sign the labor contract;

4. The respondent was ordered to pay the appellant a financial compensation of RMB 3,491.00 for the termination of the labor contract;

5. The appellee is ordered to pay overtime pay of 4,252.50 yuan to the appellant;

6. The appellee is ordered to pay the appellant 6,982.00 yuan (3491*2) in wages during the medical treatment period;

7. The judgment was made that the appellee should pay back various social insurances for the appellant from July 9, 2011 to February 14, 2012;

8. The judgment was made that the appellee should be The appellant issued a certificate of termination of the labor contract.

Facts and reasons:

1. The respondent argued that subcontracting the labor services of Rongsheng Shipyard to Shi XX was an excuse to evade responsibility. The court of first instance dismissed this Admitted, the appellant believed that the evidence was not very sufficient and it was an error in finding the facts.

Although the respondent submitted a ship engineering and manufacturing contract signed with Shi XX, there was no other evidence to prove that both parties strictly performed the authenticity of the contract. In fact, Shi XX did not have any ability or qualification to perform the contract with his own equipment, technology, manpower, and funds. Shi Hushen was just the head of a department of the appellee company

, is not the contractor of this labor service project at all. Besides, Rongsheng Shipyard also prohibits labor service companies from subcontracting labor services. In addition, regardless of whether there is a subcontracting labor relationship, this labor service project will always appear in the name of the respondent to the outside world. Fourth, the court of first instance found that the appellant’s salary was paid by Shi XX personally, which was not supported by any evidence. If it is indeed Shi XX who personally paid wages to the appellant, the respondent is fully qualified to ask the labor contractor Shi Hushen to provide him with the wage payment vouchers for the past few months to support his claim. In arbitration and litigation, But there has been no evidence to prove this. The fact is that the appellee issued salary cards to the appellant in a unified manner. Therefore, the first instance found that the appellant was employed by XX personally during the labor service project contracted by the appellee, which lacked corresponding evidence and was an erroneous determination of the facts.

2. The existence of a de facto labor relationship between the appellant and the appellee was proved by sufficient evidence. The court of first instance adopted an evasive attitude towards the probative value of the “all-in-one card” and other evidence submitted by the appellant to prove the labor relationship. The appellant believed that the appeal should be dismissed in this way. Human requests lack fairness.

First, it is an objective fact that the appellant started working as a welder at the respondent’s place on July 9, 2011. After the appellant went to work for the respondent, the respondent applied for an electronic work card for the appellant to enter and exit the Rongsheng Shipyard in accordance with the work system of Rongsheng Shipyard. The card was marked with the words "Nantong Dragon Boat" and "Rongsheng Heavy Industry" , and also has the appellant’s photo and fingerprints. The card is not marked with the words “Shi XX” labor service company. The appellant believes that this employment card fully proves the relationship between the appellant and the appellee, both in appearance and in substance. There is a de facto labor relationship between them.

If the appellee denies the authenticity of the card, he can provide the card registration form and the fingerprints on the card for identification and verification with the appellant. In the absence of such evidence, the court of first instance adopted an evasive attitude on the question of whether the card was probative, which the appellant believed was unconvincing.

Second, while the appellant was working for the appellee, the appellee company applied for a temporary residence permit for the appellant at the Rugao Port Police Station. The temporary residence address on the temporary residence permit with the appellant’s photo was clearly posted. It also says "Dragon Boat Company". This temporary residence permit was issued by the local police station in strict accordance with the "Measures for Application for Temporary Residence Permit" of the Ministry of Public Security. The appellant believed that the temporary residence permit further proved that the appellant was a worker of the appellee's company. The respondent only relied on a contract signed with the person in charge of the shift, which was completely an excuse to evade the employer's legal responsibility to the workers.

Third, just because there is no written labor contract, it cannot simply be considered that there is no de facto labor relationship between the appellant and the appellee.

According to the "Notice on Matters Concerning the Establishment of Labor Relations" (Ministry of Labor and Social Affairs [2005] No. 12)

1. The employer recruits workers without entering into a written labor contract. However, if the following circumstances are met at the same time, the labor relationship will be established.

(1) The employer and workers meet the subject qualifications stipulated in laws and regulations;

(2) The various labor rules and regulations formulated by the employer in accordance with the law apply to workers, and labor The employee is subject to the labor management of the employer and engages in paid labor arranged by the employer;

(3) The labor provided by the employee is an integral part of the employer's business.

2. The employer has not signed a labor contract with the employee, and the following documents can be referred to when determining that a labor relationship exists between the two parties;

(1) Wage payment vouchers or records (employee salary payment expenses) roster), and records of payment of various social insurance premiums;

(2) "Work certificate", "service certificate" and other documents that can prove identity issued by the employer to the worker;

(3) Recruitment records such as the "Registration Form" and "Application Form" filled out by the employer;

(4) Attendance records;

(5) Others Testimonies of workers, etc.

4. Employers such as construction and mining enterprises contract out projects (business) or management rights to organizations or natural persons who do not have the qualifications to be employed as labor entities. The workers recruited by the organizations or natural persons must be qualified by The contractor with qualifications as an employer shall bear the responsibility of the employer.

Jiangsu Provincial Higher People’s Court’s “Guiding Opinions on the Trial of Labor and Personnel Dispute Cases (II)” (Su Gaofa Review Committee [2011] No. 14)

Article 10 Construction, Mining Employers such as enterprises contract out projects or management rights to other organizations or natural persons who do not have the qualifications of employment entities. If workers sue to confirm the existence of a labor relationship with the contracting party who has the qualifications of employment entities, they will not be supported;

Accordingly, the appellant believed that although the appellant and the respondent did not sign a written labor contract, because the employer (i.e. Longzhou Company) and the employee (i.e. the appellant) met the subject qualifications stipulated in labor laws and regulations, " "Shi XX" is a natural person who does not have the qualifications as an employer. In addition, the appellant holds the work card, salary card, temporary residence permit and other evidence issued by the appellee. According to the spirit of the above notice, it shows that the appellant was managed by the appellee during his working period. , it can completely prove that there is a de facto labor relationship between the two parties. It is obviously an error in the application of law in the first instance to identify "Shi XX"'s official behavior as personal behavior.

In summary, the appellant believes that the court of first instance made errors in determining the facts and applying the law. Therefore, the appellant is dissatisfied. In order to protect the legitimate rights and interests of the appellant, the appellant now files a lawsuit with the Nantong Intermediate People's Court. Appeal, requesting your court to support the aforesaid request of the appellant.

Sincerely

Nantong Intermediate People’s Court

Appellant: Wang XX

2012-7-31