Difficulties in the distribution of burden of proof in labor dispute cases

Although China's legislation specifically stipulates the distribution of burden of proof in labor dispute cases, in the process of hearing a large number of labor dispute cases, judges still have great doubts about how to bear the burden of proof when the disputed facts are not clear.

(a) The fact of overtime work is difficult to determine

Overtime pay has always been a difficult point in the trial of labor dispute cases. According to the legislative spirit of our country, in principle, the employer is required to bear the burden of proof for the fact of overtime work, and bear the corresponding adverse consequences if the evidence is insufficient or cannot be provided. However, in the trial practice, many employers have not established attendance system and recorded overtime in detail, so that the court can't determine whether there are overtime facts, overtime hours and overtime nature because the employers can't provide relevant evidence during the trial. The employer's attendance system is still not perfect, and the attendance records provided are not signed and approved by the workers, who denied them in court. At this time, the court actually has difficulty in determining overtime.

When dealing with such problems, judges also have different views. Some people think that workers should bear the burden of proof for the fact, duration and nature of overtime. Workers can provide proof of overtime work, work results and other relevant evidence, and should not excessively increase the responsibility of the employer. If the laborer has clues to prove that the employer has attendance records, it shall be deemed that the employer shall bear the adverse consequences. Another view is that as managers, units should improve their own management system and should not pass the burden of proof on to workers. As long as the employer can't provide attendance records, the employer should bear the adverse consequences of not providing evidence.

(B) the burden of proof caused by the failure to sign a labor contract

Since the promulgation and implementation of the Labor Contract Law, a large number of disputes arising from the signing of labor contracts have emerged. Among them, because employers have not signed labor contracts with workers, it is particularly common for workers to advocate double wages. Is the reason for not signing the contract the laborer or the employer? Who will prove it? It is generally believed that the employer should prove that the written notice to the employee to sign the labor contract is due to the employee's own reasons. At this time, the burden of proof of the employer is completed, otherwise it should bear the responsibility of not signing a labor contract with the employee.

However, there are some special circumstances in the trial practice. For example, in the case of Chengdu Maigao Property Management Co., Ltd. v. Linjiang factual labor relations dispute accepted by our hospital [6], the plaintiff asked not to pay double wages because he did not sign a labor contract with the defendant. According to the usual practice, as long as the unit proves that it has issued a written notice to the employee and the employee signs for it, it can be exempted from liability. However, in this case, the defendant denied reading the written notice of the company and thought it was the responsibility of the unit. Defendant Jiang Lin is the general manager of this unit and is responsible for signing the labor contract of this unit. At this time, some judges believe that as long as the employer can prove that it has signed a labor contract with other workers, it can be concluded that the defendant knew about the signing of the labor contract for his own reasons. Some judges also believe that if the employer cannot prove that the employee has received the written notice to sign the labor contract, it should still bear the adverse consequences of not being able to prove the facts to be proved.

(3) When the wage standard cannot be determined, who will bear the burden of proof?

Follow? Who advocates, who gives evidence? According to the principle of "Labor Dispute Mediation and Arbitration Law", workers should provide evidence for the fact that the employer is in arrears with wages, but the wage payment record is held by the employer. If the evidence related to the disputed matter belongs to the management of the employer, the employer shall provide it; If the employer fails to provide it, it shall bear the adverse consequences? . However, in the trial practice, this situation exists, and the wages actually received by the workers are not consistent with the wage standards signed in the labor contract. For example, in the case of Shaanxi Daimengde Trading Co., Ltd. v. Zhou's labor dispute heard in our hospital, [7] the employer took the labor contract as evidence and asked the court to confirm the wage standard of the laborer, but did not provide the wage payment record, or the wage record provided was not signed by the employer or the laborer. Workers claim that their wages are basic wages plus commission, but there is no evidence to prove the specific amount claimed, which makes it impossible to find out the wage standard of workers. At this time, what kind of adverse consequences should the employer bear, and whether it should pay according to the amount advocated by the laborer, which brings difficulties to the trial practice.

(4)? The evidence related to the disputed matter belongs to the management of the employer? How to define the scope?

The evidence related to the disputed matter belongs to the management of the employer? There is a great controversy about the scope of evidence in trial practice. Some judges believe that this distribution rule of burden of proof increases the burden of proof of employers, and workers have to obtain relevant evidence. Belong to the employer? Whether in arbitration or litigation of labor dispute cases, the provisions on the burden of proof of the employer in labor dispute cases can be understood and applied arbitrarily. Some judges believe that in trial practice, judges can judge whether or not according to the rules of experience and the principles of fairness, honesty and credibility. Belong to the employer? Make a judgment, is the laborer right? Belong to the employer? It's unfair to testify. In most cases, workers cannot provide evidence.

In the trial practice, there are also such cases. The employer believes that employees, as managers of company files and other materials, take away all relevant materials such as labor contracts and salary payment records when they leave their jobs, which leads to the employer's inability to provide evidence in arbitration and litigation. There are different opinions on the handling of such cases. Some judges think? Belong to the employer? The evidential materials shall be provided by the employer. If the employer cannot provide evidence, it shall bear the responsibility of not providing evidence. Even if the relevant materials are taken away, it is also caused by the internal management confusion of the employer and should bear corresponding responsibilities. Another part of the judges believe that if the employer has exact evidence to prove that the evidence that should belong to it was taken away by the employee when he left the company, the employer will not bear the burden of proof.