Xiamen a company and Zhang labor contract dispute case

[Case classification] : Labor contract disputes

[Commissioned time] : September 2017

【 Brief introduction 】

On February 20, 2016, the original and the defendant signed a labor contract with a term from that date to February 19, 2017, stipulating that the defendant would work as a shop assistant at the Plaintiff's office in Shanghai. During the performance of the labor contract, the store where the defendant worked was adjusted: from February 2016 to November of the same year, the defendant worked in Branch A of the company, and from December 2016, he worked in Branch B. A branch is equipped with air conditioning, the air conditioning is normal operation, and the store is semi-open, not closed, the air is flowing, so the temperature of the defendant's working environment will not exceed 33 degrees Celsius. During the period from June 1 to June 20, 2017, the temperature did not exceed 33 degrees Celsius. Therefore, the plaintiff claims that the defendant is not required to pay the high temperature seasonal allowance for the period from June 2016 to September of the same year and from June 1 to 20 of the same month in 2017. In addition, after the expiration of the labor contract between the two parties, the plaintiff repeatedly notified the defendant to renew the written labor contract by oral or telephone means before March 20, 2017, because the defendant has not been to the plaintiff to renew the written labor contract, so the plaintiff notified the defendant to renew the written labor contract through the enterprise Dingding office software on June 6, 2017, and the defendant also consulted and knew the content. However, the defendant had already planned to resign for personal reasons and attempted to obtain improper benefits, so he still did not cooperate in renewing the written labor contract. The plaintiff has signed a written labor contract with other employees, and the written labor contract has been renewed in time for the expiration of the labor contract, and the plaintiff also pays the defendant's salary normally, and there is no reason to maliciously not renew the labor contract with the defendant. Therefore, the plaintiff is not required to pay the defendant the double wage difference for the period from March 20, 2017 to June 5 of the same year. Now the plaintiff refuses to accept the arbitration award and appeals to the court.

【 Lawyer analysis 】

The plaintiff confirms that it had an employment relationship with the defendant between February 20, 2016 and June 20, 2017, and agrees to pay the defendant's wages for the period from June 1, 2017 to June 20, 2017, which shall be recognized.

Regarding the plaintiff's claim that it is not necessary to pay the defendant the double wage difference for not signing a labor contract between March 20, 2017 and June 5, 2017, counsel believes that the labor contract law stipulates that if the employer has not concluded a written labor contract with the worker for more than one month and less than one year from the date of employment, it shall pay the worker twice the monthly wage. In this case, the original and the defendant signed a labor contract with a period from February 20, 2016 to February 19, 2017, after the expiration of the contract, the defendant continues to work in the plaintiff's office, and the plaintiff shall renew the labor contract with the defendant in a timely manner according to law. However, according to the evidence, the plaintiff only issued a notice to the defendant to renew the labor contract on June 6, 2017. Although the plaintiff claimed that it had repeatedly notified the defendant to renew the labor contract within one month after the expiration of the labor contract, it did not provide any evidence to support this statement, so it is difficult to believe. Because the plaintiff has not provided evidence to prove that the labor contract was renewed with the defendant during the period from the expiration of the labor contract between the two parties to June 5, 2017, and has not provided evidence to prove that the failure to renew the labor contract was caused by force majeure, unexpected circumstances or the defendant's refusal to sign and other reasons other than the employer, Therefore, the plaintiff shall bear the responsibility to pay to the defendant the double wage difference between March 20, 2017 and June 5, 2017, when the labor contract was not signed.

Combined with the defendant's salary situation, the plaintiff shall pay the defendant in accordance with the law the double wage difference of the labor contract not signed between March 20, 2017 and June 5, 2017. Therefore, the plaintiff's claim that there is no need to pay the defendant the double wage difference without a labor contract during the said period shall not be supported.

As for the plaintiff's claim that it is not necessary to pay the defendant's high-temperature seasonal allowance for the period from June 2016 to September of the same year, according to the provisions, the enterprise arranges workers to work in the open air from June to September every year and fails to take effective measures to reduce the workplace temperature below 33 degrees (excluding 33 degrees), should pay workers a summer high-temperature allowance, the standard is 200 yuan per month. In this case, although the store where the defendant worked during the above-mentioned period was equipped with air conditioning, according to the particularity of the defendant's working environment being a semi-open store and the food sold in the mode of on-site cooking and processing, the plaintiff did not provide sufficient evidence to prove that the temperature of the defendant's workplace had been reduced below 33 degrees. It should be recognized that the defendant is eligible for the high temperature seasonal allowance during the above period. Therefore, the plaintiff should pay the defendant $800 for the summer heat allowance from June to September 2016. With regard to the plaintiff's claim that it is not necessary to pay the defendant's high-temperature seasonal allowance for the period from June 1, 2017 to the 20th of the same month, according to meteorological records, the maximum temperature in the city during the above period was not higher than 33 degrees, so the defendant's claim that the plaintiff should pay its high-temperature seasonal allowance for the above period is without basis. Therefore, the Plaintiff's claim that there is no need to pay the defendant $133.33 of the summer heat Allowance for the period from 1 June 2017 to 20 June 2017 should be supported.

【 Verdict 】

After lawyer Liu Pei's representation, the court rejected the plaintiff's claim and ordered the plaintiff and defendant Zhang to have a labor relationship between February 20, 2016 and June 20, 2017, and the plaintiff to pay defendant Zhang's salary between June 1, 2017 and June 20, 2017 within 10 days from the effective date of this judgment. From March 20, 2017 to June 5 of the same year, the labor contract was not signed during the double wage difference, and the defendant Zhang was paid 800 yuan in summer heat allowance.