paper of civil judgment
Appellant: Zhejiang Huisong Pharmaceutical Co., Ltd. ..
Legal Representative: Zheng Meng.
Authorized Agent: Li Guanhu.
Authorized Agent: Solemn.
Appellant (defendant in the first instance): Li.
Authorized Agent: Zhou.
The appellant Zhejiang Huisong Pharmaceutical Co., Ltd. (hereinafter referred to as Huisong Company), the appellant Li Yin and the defendant Hangzhou Economic and Technological Development Zone People's Court (20 13) refused to accept the civil judgment of labor dispute No.249, and appealed to our court. On September 2nd, 20 13, our hospital filed a case for acceptance, and a collegial panel was formed to conduct the trial according to law. The case has now been closed.
The court of first instance found that:
1. Li joined Huisong Company as an operator on May 26th, 2008, and both parties signed a labor contract. The term of the contract was 2065438+65438+ 10/in 2006, and the standard working hours system was stipulated in the contract. On July 10, 2008, Huisong Company issued a notice, saying that the attendance time of day shift and night shift for positions such as production in the workshop was from 8: 00 am to 8: 00 pm, and two breaks and meals were arranged in the middle of each shift. According to the actual needs, the workshop leaders of each class arranged a 30-minute shift and meal time for each employee, and at the same time, in order to improve the attendance rate.
2. Li's salary is paid in three parts, and the basic salary is paid by bank transfer; Overtime wages are paid in cash, monthly and semi-annually. After investigation, the average basic salary of Li 20 1 1 month is 2467 yuan; 20 1 1 to 20 1 1 to February 2065438, * * * paid overtime 14582 yuan. In 20 12 years, Li's average basic salary was 2994 yuan, and * * * paid overtime pay 17237 yuan. 20 13 years 10 and February, Li Yue's average basic salary was 2639 yuan, and * * * paid overtime pay 1537 yuan. Li's average salary (including overtime) from March 20 12 to February 20 13 was 4,535 yuan. From March 20 1 1 to March 20 1 1 to February 2065438, Li's attendance on working days was postponed by * * 169 days, accounting for 676 hours, and attendance on rest days * * * accounted for 735 hours, and the working days were arranged for compensatory rest. 20 12 years, Li's attendance on working days is delayed by *** 195 days, accounting for 780 hours, attendance on rest days is 72 1.50 hours, and working days are arranged for 25 days, accounting for 200 hours. In October and February of 2013,65438, Li's attendance on working days was delayed by 23 days, and his attendance on rest days was 9 1.50 hours, all of which have been arranged for compensatory time off. On March 4th, 20 13, Li submitted his resignation letter to Huisong Company, claiming that Huisong Company violated the law and proposed to terminate the labor relationship on March 4th, 20 13 because Huisong Company failed to pay the labor remuneration in full and on time and failed to provide labor protection and working conditions as agreed in the labor contract.
Three. On March, 2065438+2003 1 day, Li applied to the Labor Dispute Arbitration Commission of Hangzhou Economic and Technological Development Zone (hereinafter referred to as the Arbitration Commission) for arbitration, requesting a ruling to dissolve the labor relationship between the two parties according to law; Huisong Company pays Li 0-year overtime pay 1 12 working days and overtime pay on rest days +06 1645. 16 yuan; Huisong Company paid economic compensation of 20,500 yuan. On April 9, 2065438, the Association made an arbitration award (Hang Jing Kai Lao Zhong Case Zi (20 12) No.33), and ruled that Huisong Company would pay Li overtime pay from March to February 1 1 yuan. Huisong Company paid Li an economic compensation of 20,500 yuan for the termination of the labor contract, and the above two items totaled 24,605 yuan, which Huisong Company shall pay within 10 days from the effective date of the award; Li's other arbitration requests were rejected.
Huisong Company filed a lawsuit in this case on May 6, 20 13, claiming that Huisong Company did not need to pay what Li called overtime pay of 4 105 yuan; Huisong Company does not need to pay Li the economic compensation of 24,605 yuan for the so-called termination of the labor contract. Li asked Huisong Company to pay its overtime pay 1 1 and economic compensation of 20,500 yuan on February 28th, 1965.
The court of first instance held 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 Huisong Company pays overtime wages in full and whether it should pay economic compensation for the termination of the labor contract. 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. Huisong Company proposes that overtime pay has been paid in three parts, one part is included in the monthly salary with Li Bank Card, the other part is paid in cash in the form of monthly night shift allowance, and the other part is paid in cash every six months. Li does not recognize the above salary as overtime pay. The court of first instance held that although Huisong Company provided a payroll to prove that overtime wages were included in the monthly wages deposited in the bank, the payroll was made by Huisong Company unilaterally, and there was no corresponding evidence to prove the composition of wages, so the court of first instance decided that overtime wages were not included in the salary amount. In addition, although the monthly payroll of night shift allowance paid in cash at 20 1 1 and 20 12 provided by Huisong Company is not clearly indicated as overtime pay, the payroll indicates the calculated days, so the wages paid should be regarded as overtime pay and paid in cash at 20 1 and February. The summary of overtime work of 20 1 1 and 20 12 provided by Huisong Company was clearly marked as overtime pay and signed by Li, so the court of first instance determined that this part of the salary was overtime pay. Regarding the meal time, according to the notice made by Huisong Company, each class has two meal times of *** 1 hour, but each class is subsidized by 1 hour for overtime attendance. Therefore, the court of first instance decided that overtime pay should be calculated as delayed overtime for 4 hours. According to Li's salary distribution, the court of first instance decided to take the average monthly salary of bank card as the calculation base of overtime pay. Therefore, from March 2065438 +0 1 to February 2065438, the overtime pay for Li's working days should be: 2467 yuan ÷2 1.75 days ÷8 hours ×676 hours ×150% =/kloc-. Overtime pay on rest days should be: 2467 yuan ÷2 1.75 days ÷8 hours ×59 1 hour ×200%= 16758.58 yuan, * * 31130. Huisong Company has paid 14582 yuan, and still has to pay 16553.23 yuan. 20 12 years, the overtime pay for Li's working days should be: 2994 yuan ÷2 1.75 days ÷8 hours ×780 hours × 150%=20 132.06 yuan; Overtime pay on rest days should be: 2994 yuan ÷2 1.75 days ÷8 hours ×52 1.50 hours ×200%= 17946.79 yuan, totaling 38,078.85 yuan, which has been paid by Huisong Company. 20 13, 65438+ 10, February, the overtime pay for Li workday should be: 2639 yuan ÷2 1.75 days ÷8 hours ×92 hours × 150%=2092.99 yuan. To sum up, Huisong Company should pay Li the overtime pay of RMB +0 1 from March 2065438 to February 2065438 +03 * * 3795 1.07. The overtime pay guarantee period between the employee and the employer is two years. Li applied for labor arbitration on March 13 to claim overtime pay, so the application for overtime pay in February/2010 expired and was rejected by the court of first instance. Although the overtime wages claimed by Li for 2065438+2003 65438+2003 10 and February were not put forward at the time of arbitration, they were tried together in this case because they were inseparable from labor disputes.
With regard to the economic compensation for the termination of the labor contract, since Huisong Company failed to pay the labor remuneration in full and on time and failed to provide labor protection and working conditions as agreed in the labor contract, Li offered to resign and asked Huisong Company to pay economic compensation. The court of first instance held that in this case, Huisong Company failed to pay the labor remuneration in full and on time, and Li dismissed the labor relationship between the two parties on this ground. According to Articles 38 and 46 of People's Republic of China (PRC) Labor Contract Law, Huisong Company shall pay economic compensation. Li started to work in Huisong Company on May 26th, 2008, and his working experience was less than five years when the labor contract was terminated. According to Article 47 of the Labor Contract Law of People's Republic of China (PRC), Huisong Company shall calculate the average salary of Li in the twelve months before the termination of the labor contract as 22,675 yuan (4,535 yuan/month ×5) and pay him economic compensation for five months. In accordance with the provisions of Articles 36 and 44 of People's Republic of China (PRC) Labor Law, Articles 38, 46 and 47 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 was made on August 2, 20 13: 1 year. Huisong Company was formally established. 2. Huisong Company shall pay Li the overtime pay of 379,565,438+0.07 yuan from March 438+0, 2065 to February 438+03, 2065 within ten days from the effective date of this judgment; 3. Reject the remaining claims of Huisong Company; 4. Reject Li's remaining claims; If Huisong Company fails to fulfill its obligation to pay money within the period specified in the judgment, it shall, in accordance with the provisions of Article 253 of the Civil Procedure Law of People's Republic of China (PRC), double the interest on the debt during the delayed performance; The acceptance fee of this case 10 yuan will be charged to 5 yuan by half, which will be borne by Huisong Company.
After the verdict was pronounced, Huisong Company, the plaintiff in the original trial, and Li, the defendant in the original trial, refused to accept the verdict and appealed to our court respectively. Huisong Company claims that: 1, the original judgment found Huisong Company illegal and other reasons, and Li proposed that it was a factual error to terminate the labor contract; 2. The original judgment denied that the amount of overtime pay determined by Huisong Company's financial statistics and arbitration award was unfair. Request the court of second instance to revoke the original judgment and change the judgment to support the original claim of Huisong Company.
Li argued that Huisong Company's statement was untrue, because it failed to pay overtime wages, which seriously violated Article 1 of the Labor Law. Li was forced to notify Huisong Company in writing to terminate the labor relationship, not because Huisong Company said that he wanted to extort a sum of money after terminating the labor relationship. Because Huisong Company fails to pay the labor remuneration in full and on time, Li has the right to terminate the labor contract according to law, and Huisong Company should pay economic compensation. Li worked overtime in Huisong Company, but Huisong Company never paid overtime wages.
Li complained that: 1, the original judgment wrongly determined the way that Huisong Company paid Li's salary and overtime; 2. The original judgment found that the amount of basic salary and overtime salary received by Li was wrong; 3. The application of law in the original judgment was improper and the evidence was wrong. Request the court of second instance to support its original claim.
Huisong Company argued that both parties paid wages according to the basic salary performance appraisal and attendance agreed in the labor contract, and a lot of information had been submitted for overtime wages in previous court trials, and the data confirmed by Li himself was also very clear. Li's resignation request was put forward by Li for his personal purpose and belonged to his subjective intention to resign. According to relevant laws and regulations, the company does not need to pay labor remuneration to Li.
During the second trial, neither party submitted new evidence.
The facts ascertained by our court through trial are consistent with those ascertained by the court of first instance.
The court held that the parties have the responsibility to provide evidence to prove the facts on which their claims are based or to refute the facts on which the other party's claims are based. If there is no evidence or the evidence is insufficient to prove the facts identified by the parties, the parties with the burden of proof shall bear the adverse consequences. The evidence submitted by Huisong Company in the original trial, such as the corresponding overtime wage voucher signed by Li, the wage bank payment voucher submitted by Li, and the notice on standardizing the extraction of double-shift production schedules in the extraction workshop, can mutually confirm the payment forms of Li's basic salary and overtime wages, as well as the corresponding amount actually received by Li, so the judgment of the original trial was determined to be correct accordingly. According to the above facts, if Huisong Company fails to pay the labor remuneration in full and on time, Li can terminate the labor contract according to law, and Huisong Company should pay Li economic compensation and make up the overtime pay difference according to law. The examination and determination of the above-mentioned evidence in the original judgment conforms to the relevant provisions of the Civil Procedure Law of People's Republic of China (PRC) and the Provisions of the Supreme People's Court on Evidence in Civil Procedure. The original judgment found the facts clear and the applicable law was correct. Huisong Company and Li's appeal grounds cannot be established according to law. According to Item (1) of Paragraph 1 of Article 170 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:
Reject the appeal and uphold the original judgment.
The acceptance fee for the second-instance case is RMB 10 yuan, and the appellants Zhejiang Huisong Pharmaceutical Co., Ltd. and Li each bear half of it, and settle the case in our hospital within ten days from the effective date of this judgment.
This is the final judgment.
Presiding judge Hu Yu
Judge Chen Yan.
Judge Wang Fu
20 13 years 1 1 month 25th
Staff Qin Wang.