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Civil judgment of second instance of labor dispute between Xu Pengfei and Qingdao Lisan Group Co., Ltd.

Intermediate People's Court of Qingdao City, Shandong Province

civil judgment

(20 18) No.7764, Lu 02 Minzhong

Appellant (plaintiff in the original trial): Xu Pengfei, female, 1992, Han nationality, living in Muping District, Yantai City.

Authorized Agent: Sui Xiaoyan, lawyer of Shandong Juncheng Renhe (Qingdao) Law Firm.

Authorized Agent: Liu Yanhong, intern lawyer of Shandong Juncheng Renhe (Qingdao) Law Firm.

Appellant: Qingdao Lisan Group Co., Ltd.

Legal Representative: Zhang Qinghua, board chairman.

Agent ad litem: Gao, female, employee of Qingdao Group Co., Ltd.

Appellee (defendant in the first instance): Qingdao Lisan Morris Hotel Co., Ltd.

Legal Representative: Wang Yuzhen, board chairman.

Agent ad litem: Gao, female, employee of Qingdao Group Co., Ltd.

Appellee (defendant in the original trial): Qingdao Lisanzhong Demei Water Equipment Co., Ltd., located at the north of Yegong Road, No.2 Jihongtan Street, Chengyang District, Qingdao.

Legal Representative: Cui Jihong, board chairman.

Agent ad litem: Gao, female, employee of Qingdao Group Co., Ltd.

The appellant and the appellant Qingdao Group Co., Ltd. (hereinafter referred to as the Group) refused to accept the judgment of Qingdao Chengyang District People's Court (20 17) Lu 02 14 Minchu 65438 due to a labor dispute with the appellee Qingdao Lisan Moliis Hotel Co., Ltd. (hereinafter referred to as Moliis Hotel) and Qingdao Lisan Zhongdemei Water Equipment Co., Ltd. (hereinafter referred to as Zhongdemei Company). After the case was filed in our hospital, a collegial panel was formed according to law to conduct a trial. Sui Xiaoyan, the appellant's agent ad litem, the legal representative of the appellee Sino-German-American Company, and the agent ad litem of the appellant group, the appellee Morris Hotel and Sino-German-American Company attended the proceedings in court. The case has now been closed.

Xu Pengfei appealed: the judgment of the first instance was revoked, and the judgment was changed according to law to support all the claims of Xu Pengfei in the first instance; First, the second trial fee shall be borne by Li San Group. Facts and reasons: 1. The court of first instance wrongly identified the fact that Xu Pengfei's average salary before his resignation was 12 months. Xu Pengfei's average salary for 65,438+02 months before his resignation was determined with the emphasis on pre-dividend. The court of first instance expounded the authenticity, nature and payment of the advance bonus, and finally concluded that the advance bonus was not part of the total salary and did not meet the payment conditions stipulated in the advance bonus certificate, which was wrong and seriously inconsistent with the facts. Xu Pengfei believes that employees have the right to receive wages and bonuses, and bonuses are an integral part of employees' wages. In the process of setting the salary structure of employees, Li San Group took advantage of its dominant position and deliberately set up the "overlord clause", putting forward the monthly bonus in the form of advance bonus, deliberately deducting the bonus of workers and infringing on their legitimate rights and interests. However, the court of first instance did not find out the facts of the case, and it was wrong to assume that the pre-reward money did not belong to the labor wage just because the employee signed the pre-reward certificate. In the first trial, Xu Pengfei claimed that Li San Group failed to pay the salary of 65,438+09,389 yuan from 2065,438+03 to 2065,438+06, which should be the so-called advance bonus and part of the salary, and Li San Group should pay it to Xu Pengfei in full. However, the court of first instance only ruled that Li San Group paid Xu Pengfei a bonus of 6786. 15 yuan, which was not in compliance with the law. Because the court of first instance wrongly identified Xu Pengfei's total wages, it also led to the mistake of asking Li San Group to pay the economic compensation for the illegal termination of the labor contract. Xu Pengfei claimed economic compensation of 23,597 yuan [337 1 yuan× 7 months], but the court of first instance only recognized 19833.3 1 yuan [2,833.33 yuan× 7 months]. Two, the court of first instance found that Xu Pengfei employees paid annual leave wages, the application of legal errors. According to Article 4 (6) and Article 10 (1) of the Provisions on the Composition of Total Wages and Article 2 and Article 5 (3) of the Regulations on Paid Annual Leave for Employees, employees of enterprises who have worked continuously for more than 1 year are entitled to paid annual leave. During the annual leave, employees enjoy the same salary as during normal work. For the number of days of annual leave that employees should take, the employing unit shall pay annual leave wages at 300% of the daily wages of employees. During the seven years from 2009 to 20 16, Xu Pengfei should take a vacation, but Li San Group did not arrange a vacation, and requested to pay 300% of Xu Pengfei's daily salary for annual vacation, in order to safeguard employees' right to rest and vacation. According to the national administrative regulations, the annual leave salary is a kind of salary paid by the employer to fulfill the national or social obligations under special circumstances, which constitutes an integral part of the total wages of workers. Xu Pengfei's request should be supported. However, the court of first instance argued that the paid annual leave salary is only a welfare treatment enjoyed according to law and should be subject to the limitation of arbitration, which is a mistake in applying the law. In the first instance, Xu Pengfei claimed that the paid annual leave salary was 10849 yuan [337 1 yuan ÷ 21.75× 7 (from 2009 to 20 16)×5 days× 200%], but the court of first instance only sentenced it. 3. It is wrong for the court of first instance to conclude that the advance payment for meals of Li San Group in Xu Pengfei is not a labor dispute. The fact is that Li San Group promised to eat, wear, live and travel for free when recruiting. Morris Hotel and Li San Group are affiliated enterprises, and Xu Pengfei was arranged by Li San Group to dine at Morris Hotel, which was not Xu Pengfei's independent choice, but one of the working conditions promised by Li San Group. Therefore, the relationship between Xu Pengfei and Morris Hotel does not belong to the catering service contract, and the court of first instance has wrongly identified the dispute between the two parties. Therefore, the agreement between Morris Hotel and Xu Pengfei that the meal expenses of employees who leave their jobs halfway shall be borne by individuals is not binding on Xu Pengfei, and Xu Pengfei should not bear the obligation to pay the meal expenses. Xu Pengfei asked Morris Hotel to refund the advance payment for meals, which was in compliance with the law. The court of first instance refused to deal with it on the grounds that it was not a labor dispute, which was an error of applicable law. Four, the court of first instance found that the charitable fund paid by Xu Pengfei does not belong to the scope of labor dispute handling, which is wrong. In fact, Li San Group used its dominant position to directly deduct Xu Pengfei's salary in the name of paying charitable funds, regardless of whether Xu Pengfei agreed or not, Xu Pengfei did not pay it voluntarily. Moreover, after the charity fund was issued, Li San Group did not publicize the management and use of the fund to Xu Pengfei, and Xu Pengfei did not know where the so-called "charity fund" was misappropriated. Therefore, the "charity fund" paid by Xu Pengfei is that Li San Group deducted Xu Pengfei's salary, which is a labor dispute. We should support Xu Pengfei's request that Li San Group pay the charity money15 to 20 16+0 yuan. To sum up, the judgment of the first instance was wrong, and the judgment was changed according to law.

Li San Group argued that, first, the judgment of the court of first instance went beyond the claim and violated the principle of non-prosecution and disregard, which was an error in applicable law. 1. Xu Pengfei didn't ask Li San Group to pay dividends in advance in the lawsuit. Xu Pengfei demanded that "the defendant pay 20 13 to 20 16 unpaid wages 19389 yuan", but the first judgment of the first instance "ordered the defendant to pay an advance bonus of 6786. 15 yuan". 2. The court of first instance did not comprehensively review the nature of the "pre-award", the object of the award and the conditions for paying the results. According to the statement on the back of the pre-award certificate, pre-award is a credit guarantee incentive measure and the embodiment of the enterprise's independent management right, which should be protected by law. During his work in Lisan Group, Xu Pengfei seriously violated the factory rules and regulations of Lisan Group and was absent from work without any handover, so the award was invalid. On the one hand, the court of first instance found that the pre-reward was not salary, on the other hand, it was wrong to apply the fault principle to give certain pre-reward to employees who left their jobs halfway. II. Li San Group has arranged for Xu Pengfei to take paid annual leave, and should not pay Xu Pengfei paid annual leave salary. 3. Prepayment for meals does not belong to the scope of accepting labor dispute cases and should not be handled in this case. 1, Xu Pengfei signed the Notice of Internal Management System of Qingdao Lisan Group when he was in office. It is clearly stipulated in the notice that the company does not provide free meals for employees because the law does not stipulate that employers must provide free meals for employees, but the company can bear the meal expenses at Morris Hotel for employees who have fully fulfilled the labor contract period as a reward for their faithful performance of the labor contract. If the term of the labor contract is not fulfilled for any reason, it will not bear the meal expenses at Morris Hotel during the working period, nor will it bear any responsibility for the meal expenses dispute with Morris Hotel. 2. When Xu Pengfei joined the company, he signed a "dining contract" and personally wrote an "application for dining priority", and paid 20,000 yuan in advance to Moliis Hotel. All expenses incurred will be settled by Morris Hotel Xu Pengfei, which has nothing to do with Li San Group. Moreover, Article 2 of the catering contract clearly stipulates that when the contract is terminated, it shall be settled according to the facts, with overpayment and underpayment. Fourth, Li San Group never forced Xu Pengfei to pay the charity fund, nor did it deduct it from his salary, which does not belong to the scope of accepting labor dispute cases and should not be handled in this case. V. The reason for Xu Pengfei's resignation is not that Li San Group failed to pay social insurance, but that he was absent from work, so Li San Group should not pay Xu Pengfei economic compensation. Xu Pengfei was absent from work without any handover. Li San Group repeatedly urged him to come back to work or hand over his work, but Xu Pengfei ignored him. Because of its serious violation of factory rules and regulations, it was dealt with according to the system, and the labor contract relationship with Xu Pengfei was terminated according to law, and a notice was posted. Li San Group should not pay Xu Pengfei economic compensation. To sum up, the first-instance judgment found that the facts were unclear and the applicable law was wrong, and requested to support Li San Group's claim.

The defense opinions of Morris Hotel and Sino-German-American Company are the same as those of Li San Group.

Li San Group's appeal request: cancel the first-instance judgment and reject all the claims of Xu Pengfei; First, the cost of second instance shall be borne by Xu Pengfei. Facts and reasons: First, the judgment of first instance went beyond Xu Pengfei's claim, which violated the principle of non-prosecution and disregard, and was an error in the application of law. 1. Xu Pengfei didn't ask Li San Group to pay the advance bonus, while Xu Pengfei asked "the defendant to pay the plaintiff's unpaid salary of 20 13 and 20 19389 yuan", but a trial order "the defendant paid the plaintiff's advance bonus of 6786. 15 yuan" exceeded it. Li San Group did not owe Xu Pengfei wages, and the court of first instance also decided that the advance bonus was not a salary, but a conditional bonus beyond the salary. Therefore, the court of first instance exceeded Xu Pengfei's claim and should cancel it. 2. The court of first instance did not comprehensively review the nature of the "pre-bonus", the target of the bonus and the conditions for paying the results. The statement on the back of the pre-dividend certificate clearly states that pre-dividend is an additional reward for qualified employees. According to article 2) of the statement, this bonus is an extra bonus paid by the company to encourage employees to abide by contracts, agreements and commitments and to pay attention to employees' wages, monthly salary and reputation. This award is only valid for employees with good reputation. Article 6 stipulates that no matter what the circumstances and reasons (failure to sign a labor contract or failure to pay endowment insurance, etc.), the reward will be invalid. ) as long as the person who is rewarded leaves his job halfway. Article 5) It is stipulated that if the rewarded person is dealt with according to law in violation of national laws and regulations, or is dismissed, suspended, expelled or removed from the company in violation of factory rules and regulations, this award is invalid. Moreover, it is clearly stipulated in the positive "Effective Conditions of Pre-reward": "Pre-reward is effective only when the rewarded person meets the following conditions, otherwise it will be invalid: 1) If the employee has signed a labor contract for 20 years or more and worked continuously for more than 20 years, the pre-reward will be effective and the pre-reward will expire in 20 years. If the employee has signed a labor contract of 20 years or more and has worked continuously for more than 20 years, and the pre-reward is less than 20 years but reaches the legal retirement age (if the retirement age is agreed by both parties, the time agreed by both parties shall prevail), the pre-reward is still valid. 2) If a labor contract has not been signed or the term of signing the labor contract is less than 20 years, and no substantial and effective credit commitment or credit guarantee commitment has been made to the company, the pre-reward will be effective only if it reaches the statutory retirement age and has worked in the company for more than 25 years continuously, and it will be invalid if it leaves the company halfway. 3) If the pre-reward is less than 20 years after the expiration of the labor contract, the pre-reward is invalid. 4) If the pre-reward has expired for 20 years and the labor contract has not expired, the pre-reward is invalid. " It can be seen that the nature of advance bonus is a credit guarantee incentive measure, and it is an original commercial incentive mechanism for enterprises to attract and bind talents by combining the confidentiality of their own high-tech patented products. It conforms to the requirements of the legal framework for enterprises to operate independently and formulate their own operating systems, and is not prohibited by laws and regulations in China, so it is worthy of social advocacy and national legal protection. During his work in Lisan Group, Xu Pengfei seriously violated the factory rules and regulations of Lisan Group and was absent from work without any handover, so the award was invalid. On the one hand, the court of first instance ruled that the pre-reward money was not salary, on the other hand, it applied the principle of fault to give certain pre-reward money to employees who left their jobs halfway, and gave certain pre-reward money according to the proportion of employees' working years. The application of legal errors also interferes with the legal management system of independent operation and self-development of enterprises and affects the development of enterprises. Second, the reason why Xu Pengfei resigned was not that Li San Group failed to pay social insurance for him, but that he was absent from work for no reason, so he should not pay Xu Pengfei economic compensation. 1. The court of first instance found that the reason for Xu Pengfei's resignation was that the unit did not pay him social insurance, which was inconsistent with the facts. After Xu Pengfei joined the company, the company asked him to pay social insurance many times. Leaders at all levels talked with Xu Pengfei many times to persuade him to pay social insurance, which can be confirmed by his competent leaders and several witnesses. However, Xu Pengfei postponed the application for various reasons, so that the part paid by individuals who did not pay social insurance could get cash. Xu Pengfei was absent from work without any handover. Li San Group repeatedly urged him to come back to work or hand over his work, but Xu Pengfei ignored him. Because of his serious violation of factory rules and regulations, Li San Group should not pay Xu Pengfei economic compensation. 2. The Report on Dissolution/Termination of Labor Contract submitted by Xu Pengfei to the court of first instance is forged (the official seal on the report is inconsistent with the official seal of Li San Group), which is illegal and should not be accepted. Li San Group failed to issue the Report on Dissolution/Termination of Labor Contract for Xu Pengfei. Iii. Li San Group has arranged for Xu Pengfei to take paid annual leave, and should not pay Xu Pengfei paid annual leave salary. To sum up, the first-instance judgment found that the facts were unclear and the applicable law was wrong, and requested to change the judgment to support the appeal request of Li San Group.

Xu Pengfei replied that the legal provisions of the First and Third Profit Groups on the amount of advance prize are against the compulsory labor law of the state, and are invalid and not binding on Xu Pengfei. Advance bonus is an integral part of the total salary, and employees have the right to receive salary bonus, which is an integral part of employees' salary. In the process of setting the salary structure of employees, Li San Group took advantage of its dominant position and deliberately set up the "overlord clause", putting forward the monthly bonus in the form of advance bonus, deliberately deducting the bonus of workers and infringing on their legitimate rights and interests. Second, Xu Pengfei submitted the report on the termination of the labor contract provided by Li San Group at the first trial, which proved that the real reason for the termination of the contract was "overtime and low salary without paying insurance". Xu Pengfei's resignation from Lisan Group was caused by the company's failure to pay social insurance premiums for him, and it was not wrong for Xu Pengfei to terminate the labor contract between the two parties. Xu Pengfei submitted the report on the dissolution of the labor contract provided by Li San Group in the first instance. Li San Group indicated that it would be implemented after the trial, but did not submit any implementation opinions. The first instance found that the evidence was true, legal and relevant, and adopted it correctly. Li San Group should bear the legal responsibility and consequences for failing to provide evidence. Thirdly, the Report on the Termination of Labor Contract provided by Li San Group proves that the real reason for the termination of the contract is "overtime and low salary without paying insurance", and there is no evidence to prove that Xu Pengfei has been arranged with paid annual leave. From 2009 to 20 16, Xu Pengfei should take a vacation. Li San Group did not arrange a vacation, and asked to pay 300% of Xu Pengfei's daily salary for annual vacation, which was in line with the law and should be supported.

The statements of Morris Hotel and Sino-German-American Company are consistent with those of Li San Group.

Xu Pengfei sued to the court of first instance: 1, and ordered Li San Group, Morris Hotel and Sino-German-American Company to pay the unpaid wages of Xu Pengfei from 20 13 to 20 16/RMB 19389 and 20 15 to 20 16. 2. The litigation costs of this case shall be borne by Li San Group, Morris Hotel and Sino-German-American Company.

The court of first instance found the facts:

Evidence submitted by the parties, cross-examination opinions of the parties and the adoption of evidence by the court of first instance:

1. Xu Pengfei submitted the receipt and explanation, which prove that Xu Pengfei paid the advance payment of 20,000 yuan to Morris Hotel on February 23rd, 2009, and asked Morris Hotel to return it. As Li San Group is the company that manages Moliis hotels, Li San Group should be jointly and severally liable for the repayment of the above debts, and this request has nothing to do with Sino-German-American companies. Morris Hotel has no objection to the authenticity of the receipt, but the receipt belongs to the catering service contract relationship between Xu Pengfei and our company, not a labor dispute relationship, and should not be handled in this case. If Xu Pengfei thinks he didn't eat, he should claim compensation from our company according to law. The authenticity of the statement needs to be confirmed after the court. Even if the evidence is true, it can't reflect the relationship between Li San Group and our company and can't prove its certification. Li San Group cross-examined, the authenticity of the receipt can not be confirmed, but it has nothing to do with our company. Our company does not directly collect relevant funds, and Li San Group and Moliis Hotel are economically independent. The cross-examination opinions stated are the same as those of Morris Hotel. The cross-examination between China, Germany and the United States has nothing to do with our company.

The court of first instance held that the receipts in this group of evidence were true, lawful and relevant, and could be used as the basis for ascertaining the facts of the case. The authenticity of the explanation and the validity of the proof need to be determined in combination with other evidence. The date recorded on the receipt is 65438+February 65438+March 2009, showing that the payer is Xu Pengfei and the amount is 20,000 yuan. The reason for the receipt is "catering advance payment" and stamped with "special financial seal of Qingdao Lisan Hotel Co., Ltd.". The content of the explanation is: "Qingdao Lisan Zhongdemei Water Equipment Co., Ltd. is a holding subsidiary of Qingdao Lisan Group Co., Ltd., specializing in the production and operation of water supply equipment, and Lisan Group has administrative functions for it." It is stamped with the seals of Li San Group and Sino-German-American Company.

2. Xu Pengfei submitted a transaction detail of Huaxia Bank, which proves that the average salary in Xu Pengfei from July 20 15 to June 20 16 was 337 1 yuan. Li San Group cross-examined that it had no objection to the authenticity of the evidence, but had objections to the matters to be proved, and the average monthly salary should be 2520 yuan. Morris Hotel and Sino-German-American Company said the evidence had nothing to do with it. Xu Pengfei retorted that the salary calculated by Xu Pengfei is the paid salary recorded in the bank account details plus the monthly salary deducted before the reward, and the monthly average salary before leaving the company 12 months totals 337 1 yuan.

The court of first instance held that the evidence was true, lawful and relevant and could be used as the basis for ascertaining the facts of the case.

3. Xu Pengfei submitted thirty-three award certificates, which prove that during Xu Pengfei's work in Li San Group, Li San Group deducted Xu Pengfei's salary 19389 yuan. Li San Group cross-examined that the authenticity needs to be confirmed by the court. Even if the evidence is true, it cannot be proved that this part of the money was withheld from Xu Pengfei's salary. As can be seen from the contents of the evidence, the pre-reward is only valid after completing the contract period in Xu Pengfei and working continuously for 20 years, and the resignation in the middle is invalid. At present, Xu Pengfei has worked in our company for less than 20 years and has left, so our company should not pay this fee. Li San Group did not submit implementation opinions after the trial. Morris Hotel and Sino-German-American Company said the evidence had nothing to do with it. Regarding the nature of pre-reward, Xu Pengfei said that pre-reward is deducted according to a certain proportion of wages payable and is part of wages; Li San Group said that the pre-reward is calculated according to a certain proportion of the wages payable, and the essence is a conditional bonus. Upon inquiry by the court of first instance, Xu Pengfei said that he did not claim the right to return the advance payment to Morris Hotel and Sino-German-American Company. After the trial, Li San Group did not submit an execution opinion on the authenticity of the evidence.

The court of first instance held that the evidence was true and lawful.