paper of civil judgment
Plaintiff: Zhejiang Huisong Pharmaceutical Co., Ltd.
Legal Representative: Zheng Meng.
Authorized Agent: Shen Huazuo.
Defendant: Zhang Huaqing.
Authorized Agent: Zhou.
Plaintiff Zhejiang Huisong Pharmaceutical Co., Ltd. and defendant Zhang Huaqing filed a lawsuit in our hospital on March 5, 20 178 for refusing to accept the arbitration award of the Labor Dispute Arbitration Commission of Hangzhou Economic and Technological Development Zone (hereinafter referred to as the Arbitration Commission). On the same day, our court accepted the case, and Ning Shen, the acting judge, tried it by himself according to the summary procedure. The trial was held in public on April 23, 20 13. Later, due to the complexity of the case, the court formed a collegiate bench according to law and held the second public hearing on July 29, 20 13. The entrusted agent Shen Huazuo, the defendant and the entrusted agent of Zhejiang Huisong Pharmaceutical Co., Ltd. attended the lawsuit in court. The case has now been closed.
The plaintiff, Zhejiang Huisong Pharmaceutical Co., Ltd. claimed that the plaintiff hired the defendant as a workshop operator on February 5, 2006, and the last labor contract signed by both parties was 201110 to 20 12. 20 12 On August 20th, the plaintiff's administrative personnel department sent the defendant a Notice of Renewal of the Labor Contract upon Expiration in written form, clearly informing the defendant that after receiving the notice, he would carefully consider and decide whether to renew it. 20 12, 10 submit written opinions to the company's administrative human resources department before August 20, and will not be renewed after the deadline. The defendant failed to send a written notice to the plaintiff's administrative personnel department within the time limit. Therefore, the plaintiff waited until the deadline of the labor contract to find that the defendant had left the plaintiff's unit before the end of 20 12 10. The plaintiff decided to terminate the labor contract according to law. The defendant broke into the plaintiff's production workshop to find Nie Mou in the first ten days of October 20 12 1 1 and offered to work in the pharmaceutical workshop for no reason. In view of the fact that the plaintiff's enterprise belongs to the special pharmaceutical industry, it was naturally rejected. The defendant then applied for labor dispute arbitration, falsely accusing the plaintiff that "the respondent forced 20 12 1 14+0 not to let the applicant go to work" and demanded compensation and overtime pay. The plaintiff refuses to accept the arbitration award, and now claims: 1, confirming that the labor contract between the plaintiff and the defendant expired on 20 12 10 3 1, and the legal fact that the labor contract between the two parties was terminated naturally is legal and valid; 2. Requesting the plaintiff not to pay compensation to the defendant; 3. Request the plaintiff to reissue the overtime paid by the defendant 20 1 1 in full, amounting to 1247 yuan.
The plaintiff Zhejiang Huisong Pharmaceutical Co., Ltd. submitted the following evidence to our court to support its claim:
Evidence 1 and a full-time labor contract, which prove that the term of the labor contract signed by the plaintiff and the defendant is 1 year, and the starting and ending time is 20 1 year,1/month,1day to 20/kl.
Evidence 2. A notice of renewal of the labor contract, which proves that when the defendant's contract expired, the plaintiff informed the defendant in writing to renew the contract in August 12, and the notice of renewal was given to the defendant, but the defendant did not submit the receipt to the plaintiff.
Evidence 3. The certificate of the service of the contract renewal notice by the personnel cadre of the plaintiff company, which proves the fact that the personnel cadre handed the renewal notice to the defendant.
Evidence 4. 1. A copy of the personnel rules and regulations, which proves that the plaintiff company has provisions on the labor contract renewal and vacation system, and the defendant failed to go through the formalities for vacation according to the regulations of the company.
Evidence 5. Two photos (photocopies) of the publicity column, which prove that the system has been publicized on the wall.
Evidence 6. (20 12) The arbitration awardNo. 178, which proves that the case has gone through the pre-procedure of labor arbitration and the plaintiff refuses to accept the arbitration award No.2.
Evidence 7. A record of the overtime pay of the defendant in the plaintiff's company, which proves that the overtime pay of the defendant has been paid truthfully.
Evidence 8: The defendant's attendance cards of 2011and February, which prove the defendant's actual attendance time.
Evidence 9. The defendant's monthly salary list of 20 1 1 year and 20 12/copy (upon the plaintiff's application, the court requested it from the arbitration commission according to law), which proved the defendant's monthly salary.
Evidence: 10, 20 1 1 year night shift allowance payroll (upon the plaintiff's application, the court obtained it from the arbitration commission according to law) and 20 12 year night shift allowance payroll (copy), which prove that overtime pay has been paid.
Evidence 1 1, 20 1 1, 20 12, and four copies of overtime pay summary, which prove that overtime pay has been paid from the defendant's salary.
Evidence 12 and a notice of termination of the labor contract, which prove that the defendant was absent from work for more than 15 days and decided to terminate the contract after being notified by the plaintiff.
Defendant Zhang Huaqing argued that what the plaintiff claimed was not true. The fact is: on 20 12 and 27/kloc-0 10, the defendant left the company at 5: 00 a.m. after handing over the finished work, and called the field manager to ask for leave at 8: 00 a.m., and got the verbal consent of the field manager, asking the defendant to fill in a leave note after returning to the factory. When the defendant supplemented the leave slip on October 29th, 65438/kloc-0, the field director signed and agreed that the leave period on the leave slip was1October 29th to June 5438+065438+1October 14. Defendant165438+1October 13 returned to work early, and when 65438+1October 14 held the morning meeting, the director abused the defendant at the morning meeting, and the defendant retorted a few words. The director issued a certificate which read: Zhang Huaqing is not needed in our field. After management forced the defendant not to go to work. The defendant never received the plaintiff's notice of labor expiration and renewal. Therefore, it is requested to order the plaintiff to pay the defendant compensation of 57,400 yuan for the illegal termination of the labor contract, overtime pay114,925.68 yuan, and the litigation expenses shall be borne by the plaintiff.
Defendant Zhang Huaqing submitted the following evidence to our court to support his argument:
Evidence 1, a copy of Hangzhou Social Insurance Certificate (printed copy), which proves the labor relationship and working years between the defendant and the plaintiff.
Evidence 2. (20 12) Arbitration AwardNo. 178, which proves that this case has gone through the pre-procedure of labor arbitration.
Evidence 3. 1. A certificate, which proves that the plaintiff dissolved the labor contract illegally.
Evidence 4, an attendance card.
Evidence 5. Electronic attendance record.
The above two pieces of evidence * * * are used to prove the defendant's attendance days and overtime facts.
Evidence 6. An attendance sheet, which proves that the defendant worked overtime for 4 hours every day on weekdays and 12 hours on weekends and legal holidays.
Evidence 7. Personal wage income certificate and Hangzhou housing inquiry record.
Evidence 8. Bank records.
Evidence 9. Monthly payroll (copy)
The above three evidences are used to prove the fact that the defendant's monthly income is 4 100 yuan.
Evidence 10 and leave slip, which prove that the labor relationship between the plaintiff and the defendant has always existed.
Evidence 1 1 and a resignation record, which prove the reasons for the defendant's sudden resignation.
Evidence 12, a copy of the notice made by the plaintiff, which proves the schedule of two shifts.
In addition, in order to prove the relevant facts, the defendant applied for witnesses Li and Liu to testify in court, which was allowed by the court according to law. During the trial, witnesses Li and Liu presented their testimony in court: the defendant's workshop was operated in two shifts, with the white shift from 8 am to 8 pm and the night shift from 8 pm to 8 pm, and they had never seen the company's rules and regulations (evidence 13).
The evidence submitted by the plaintiff is 1, and the defendant has no objection to the three characteristics of the evidence, which is confirmed by our court. Evidence 2, the defendant objected to the three characteristics of the evidence, thinking that the defendant had never seen the evidence; Evidence 3, the defendant has objections to the three characteristics of evidence, and thinks that Gong Hong's proof is witness testimony, which does not meet the formal requirements of evidence, and the situation is not true. The rest of the labor contract renewal notices are considered irrelevant to this case. In our court's opinion, Evidence 2 was unilaterally produced by the plaintiff, and its authenticity cannot be confirmed. In Evidence 3, Gong Hong's proof belongs to witness testimony, and the witness did not appear in court, which did not meet the requirements. Evidence 4. The defendant objected to all three aspects of evidence and proposed that he had never seen the rules and regulations. Evidence 5. The defendant has no objection to the authenticity. In this regard, our hospital believes that when an employer formulates, modifies or decides rules and regulations or major issues that directly affect the vital interests of workers, such as working hours, rest and vacations, it should be discussed and approved by the workers' congress or all employees, and the rules and regulations should be informed to the workers. The photos provided by the plaintiff are photocopies, which can't confirm their authenticity and can't meet the requirements of the plaintiff. Evidence 6. The defendant has no objection to the three characteristics of the evidence, which is confirmed by our court. Evidence 7: The defendant objected to all three aspects of evidence and thought that the money was received, but it was not overtime pay. We believe that the explanation of overtime pay was made by the plaintiff unilaterally, and its authenticity cannot be confirmed. Evidence 8, the defendant has no objection, and this court confirms it. Evidence 9: The defendant objected to all three factors, thinking that there was no defendant's signature on the payroll and he didn't know there was overtime pay. We believe that the evidence does not have the defendant's signature and cannot prove the composition of the salary, but the amount of the salary paid is acceptable. Evidence 10, the defendant has no objection to the authenticity, but has objection to the object of proof, which is not considered as overtime pay. The court held that the evidence was clearly expressed as night shift allowance and could be recognized as overtime pay. Evidence 1 1, the defendant has three objections, and thinks that he did receive the money, but it was not overtime pay. We believe that the evidence clearly shows that it is a summary of overtime work and is signed by the defendant, so we recognize the evidence and pay the salary as overtime pay. Evidence 12, the defendant objected to all three, thinking that the defendant did not receive it. We believe that the authenticity of the evidence confirmed by our court can prove that the plaintiff decided to terminate the labor contract with the defendant on 20 12 1 14.
The plaintiff has no objection to the authenticity of the evidence 1 submitted by the defendant, but thinks that it cannot achieve the defendant's purpose of proof. We believe that the plaintiff's statement in court that the defendant entered the company in 2006 can confirm the authenticity of the evidence and prove its purpose of proof. Evidence 2. The plaintiff has no objection to the authenticity, and this court confirms it. Evidence 3, the plaintiff has an objection to the authenticity, and our court believes that the certificate is stamped with the plaintiff's official seal, so its authenticity is confirmed. Evidence 4 and Evidence 5, the plaintiff has no objection to the authenticity, which is confirmed by our court. Evidence 6, the plaintiff has an objection to the authenticity, and the court thinks that the evidence is not stamped with the company seal and signed by the relevant person in charge, so it is not recognized as authenticity. Evidence 7, the plaintiff has no objection to the authenticity, but has objection to the relevance, and thinks that the salary amount of 4 100 yuan is the comprehensive salary amount, and our court confirms the authenticity of this evidence. Evidence 8 and Evidence 9, the plaintiff has no objection to the authenticity, which is confirmed by our court. Evidence 10, the plaintiff has three objections, and thinks that the defendant's purpose of proof cannot be achieved. We believe that the application has the signature of the person in charge of the plaintiff company, so we confirm the authenticity of the evidence. Evidence 1 1, the plaintiff thinks that it is irrelevant to this case, and our court thinks that the relationship between Zhang Wenjun and the defendant recorded in the discharge record cannot be confirmed, so the defendant's purpose of proof cannot be achieved. Evidence 12, the plaintiff has no objection to the authenticity, but thinks that the production schedule is changing, and the notice in 2008 has no probative force. We believe that the notice was made by the plaintiff and confirm the authenticity of the evidence. Evidence 13, the plaintiff believes that the testimony of two witnesses is contradictory and unclear, and our court believes that the testimony of two witnesses can be mutually confirmed as the basis for determining the facts of the case.
According to the above valid evidence and the statements of both parties, our court confirms the following facts of the case:
1. The defendant entered the plaintiff's office as an operator on February 5, 2006, and both parties signed a labor contract. The term of the labor contract ended on February 0/2, 2006, and the contract stipulated a standard working hour system. On July 10, 2008, the plaintiff made a notice, saying that the attendance time of day shift and night shift was from 8: 00 am to 8: 00 pm, specifically, two breaks and meals were arranged in the middle of each shift, and the workshop leader of each shift arranged 30 minutes of shifts and meals for each employee according to actual needs, and at the same time, in order to improve attendance enthusiasm.
Second, the defendant's salary payment is divided into three parts, the basic salary is paid by bank transfer, and the overtime salary is paid by cash, which is divided into monthly payment and semi-annual payment. According to the calculation, in 20 1 1 year, Zhang Huaqing's monthly average basic salary was 28 14 yuan, and * * * paid overtime salary 1463 1 yuan. From June 20 12 to June 20 10, Zhang Huaqing's monthly average basic salary was 2,892 yuan, and * * * paid overtime salary of 9,432 yuan. The average wage in Zhang Huaqing from 20 1 1 to 20 1 to 20 12 is 3860 yuan. 20 1 1 year, the defendant's attendance on working days was delayed by ***220 days, accounting for 880 hours, attendance on rest days was 707.50 hours, and working days were arranged for 22 days, accounting for 176 hours. 20 12 years, the defendant's attendance on working days was delayed by *** 150 days, accounting for 600 hours, and attendance on rest days was 559 hours, accounting for 392 hours.
Three. 20 12, 12129 October, the defendant needed to ask for leave because of something. The leave time is 129 October 20 12,12, 14, with Nie Fu, head of the department. Nie Fuli, head of the department of 2012165438+14, issued a certificate that "we don't need Zhang Huaqing as an employee" and stamped the plaintiff's Nine Treasures workshop. On the same day, the plaintiff made a notice to terminate the labor contract, claiming that Zhang Huaqing was absent from work for more than 15 days from 20 12 to 201213, and did not go through the formal leave formalities according to the relevant regulations of the company. Moreover, from June 20 12 to June 2002, I have been absent from work for more than 10 days, which seriously violated the company's rules and regulations. At the same time, the labor contract signed by both parties expired on June 3 10, and Zhang Huaqing failed to apply for renewal on time. According to the company's rules and regulations, it was decided on June 20 10.
4. The defendant applied to the Arbitration Commission for arbitration, requesting the plaintiff to pay 57,400 yuan as compensation for the defendant's illegal termination of the labor contract; Overtime 132665.40 yuan. On February 8, 1965, the Committee madeNo. 178, in which it ruled that the plaintiff paid the defendant overtime pay of 4 1 13 yuan and compensated 48,020 yuan for the illegal termination of the labor contract.
We believe that the legitimate rights and interests of workers and employers should be protected according to law. The focus of the dispute in this case is whether the plaintiff illegally terminates the labor contract and whether overtime pay should be paid. Regarding the termination of the labor contract, the defendant claimed that the plaintiff should pay compensation for the illegal termination of the labor contract. The plaintiff claimed that both parties did not need to pay compensation for the termination of the labor contract due to the expiration of the contract. In this regard, our court believes that the labor contracts of the original defendant and the defendant expired on 3 12, 10, 3 1, 2065438, 10 and 2065438. It is requested to rest until 2012110/4, and Nie Fuli, the head of the plaintiff's department, has signed and agreed that the labor relationship between the plaintiff and the defendant still exists during this period, so the plaintiff's claim to terminate the labor contract due to the expiration of the contract is inconsistent with the facts. 2012165438+1014 The plaintiff claimed that the defendant was absent from work for more than 15 days, which seriously violated the company's rules and regulations and decided to terminate the labor contract relationship with the defendant. In this regard, the court held that the defendant's leave was approved by the head of the department and should not be regarded as absenteeism, and the plaintiff did not provide evidence to prove that the rules and regulations had been fulfilled. According to the defendant's working time in the plaintiff's office, the plaintiff should pay the defendant the economic compensation of seven months' salary according to the average salary standard of the defendant in the twelve months before the termination of the labor contract, which is calculated as 54,040 yuan (3,860 yuan/month× 7 months× 2).
With regard to overtime pay, according to the provisions of relevant laws and regulations, if the employer arranges workers to extend their working hours within the standard working day, they will pay no less than150% of the salary; If workers are arranged to work on rest days but cannot be arranged for compensatory rest, they shall be paid no less than 200% of their wages. The plaintiff claims that overtime pay has been paid in three parts, one part is included in the salary of the defendant's bank card every month, the other part is paid in cash every month in the form of night shift allowance, and the other part is paid in cash every six months. The defendant did not recognize the above salary as overtime pay. The court held that although the plaintiff provided a payroll to prove that the monthly salary deposited in the bank included overtime pay, the payroll was made by the plaintiff unilaterally, and there was no corresponding evidence to prove the composition of the salary, so the court ruled that overtime pay was not included in the salary amount. In addition, although the monthly salary slip provided by the plaintiff to pay the night shift allowance in cash is not clearly marked as overtime pay, the salary slip contains days to be calculated, and the paid salary should be regarded as overtime pay. The overtime summary of 20 1 1 and 20 12 provided by the plaintiff was clearly marked as overtime pay and signed by the defendant. So our court ruled that this part of the salary is overtime. Regarding the meal time, according to the notice made by the plaintiff, each class has two meal times of *** 1 hour, but each class has an overtime attendance allowance of 1 hour. Therefore, our court ruled that overtime pay should be calculated according to the delayed overtime time of 4 hours. According to the salary distribution of the defendant, our hospital decided to use the average monthly salary into the bank card as the calculation base of overtime pay. Therefore, in 20 1 1 year, the defendant's overtime pay for missing work on weekdays should be: 28 14 yuan ÷2 1.75 days ÷8 hours ×880 hours ×150% = 2/kloc. Overtime pay on rest days shall be: 28 14 yuan ÷2 1.75 days ÷8 hours× 531.50 hours× 200% =17191. In 20 12 years, the overtime pay for the defendant's working days should be: 2892 yuan ÷2 1.75 days ÷8 hours ×600 hours × 150%= 14958.62 yuan. Overtime pay on rest days should be: 2892 yuan ÷2 1.75 days ÷8 hours × 167 hours ×200% = 555 1.365438 0 yuan, totaling 20509.93 yuan, and the plaintiff has paid 9432 yuan, which is still outstanding. To sum up, the plaintiff should pay the defendant 34,985.78 yuan for overtime pay of 2065,438+065,438+0 and 2065,438+02. According to Articles 36 and 44 of People's Republic of China (PRC) Labor Law, Articles 47 and 87 of People's Republic of China (PRC) Labor Contract Law and Article 64 of People's Republic of China (PRC) Civil Procedure Law, the judgment is as follows:
1. Plaintiff Zhejiang Huisong Pharmaceutical Co., Ltd. shall pay defendant Zhang Huaqing 54,040 yuan for illegal termination of the labor contract within ten days from the effective date of this judgment;
2. The plaintiff Zhejiang Huisong Pharmaceutical Co., Ltd. paid the defendant Zhang Huaqing overtime pay of 34,985.78 yuan within 10 days from the effective date of this judgment;
3. Reject the claim of the plaintiff Zhejiang Huisong Pharmaceutical Co., Ltd.;
4. Reject the remaining claims of the defendant Zhang Huaqing.
If the plaintiff fails to perform the obligation of paying money within the period specified in this judgment, it shall double the interest on the debt during the delayed performance in accordance with the provisions of Article 253 of the Civil Procedure Law of People's Republic of China (PRC).
The acceptance fee of this case 10 yuan shall be borne by the plaintiff Zhejiang Huisong Pharmaceutical Co., Ltd. ..
If you refuse to accept this judgment, you can submit an appeal and a copy to our court within 15 days from the date of service of this judgment, and appeal to the Intermediate People's Court of Hangzhou, Zhejiang Province, and pay the appeal acceptance fee in advance 10 yuan to the Intermediate People's Court of Hangzhou, Zhejiang Province. If an appeal is filed against a property case, the case acceptance fee shall be paid in advance according to the appeal request against the judgment of the first instance. If the payment is not made within seven days after the expiration of the appeal period, the appeal shall be automatically withdrawn (the bank of Hangzhou Intermediate People's Court of Zhejiang Province is Hubin Branch of Industrial and Commercial Bank of China, and the account name is Hangzhou Intermediate People's Court of Zhejiang Province, and the account number is 120202440900802968).
Presiding Judge Shen Ning
People's juror Yan Xiaoxian
People's juror Lin Xiangkuan
20 13 August 2nd
Bookkeeper Gao Yuan