Who Is The Employee Who Advocates "Double Pay"?

If a laborer claims that the employer should terminate the labor contract, it should give evidence to the employer about unilaterally cancelling the labor contract.

If a worker can make a reasonable statement of the fact that the employer is relieved and provide evidence of the above evidence, it can be concluded that the fact that the employer unilaterally terminates the labor contract is established; if the worker fails to make a reasonable statement of the fact that the employer is relieved, and fails to provide any evidence to prove the fact that the employer unilaterally terminates the labor contract, it should bear the adverse consequences of the burden of proof in accordance with the law.

"Who advocates and who gives evidence" is the general rule of proof in labor dispute arbitration.

According to the sixth provision of the labor dispute mediation and arbitration law, labor disputes arise, and the parties have the responsibility to provide evidence for their claims.

The evidence relating to the dispute is under the control of the employing unit, and the employing unit shall provide it. If the employer fails to provide the evidence, it shall bear adverse consequences.

The general principle of burden of proof in civil action should be applied to handling labor dispute cases, that is, "who advocates and who gives evidence", but the principle of inversion of evidence should be applied in specific circumstances. The Supreme People's court's "provisions on civil litigation evidence" stipulate that "in labor dispute cases, the employer shall bear the burden of proof when the labor dispute is decided by the employer's decision to expel, remove, dismiss, rescind the labor contract, reduce labor remuneration, and calculate the working life of workers."

The tenth provision of the labor contract law stipulates: "in establishing labor relations, a written labor contract shall be signed.

If a labor contract has been established and no written labor contract has been written at the same time, a written labor contract shall be concluded within one month from the date of the employment. "

The eighty-second rule states: "if the employer fails to conclude a written labor contract with a worker for more than one month after the day of his own employment, he shall pay the laborer two times the monthly salary."

According to the opinions of the Shanghai Higher People's Court on Several Issues concerning the application of the labor contract law (Shanghai Gao law [2009]73), the conclusion and performance of the labor contract should follow the principle of good faith.

The laborer has actually worked for the employer. If the employer has not signed a written contract with the employee for more than a month, whether he or she needs to pay the wages of the worker twice, we should consider whether the employer has performed the obligation of honest consultation and whether the laborers refuse to sign the contract.

Of course, such consultations should be consultations aimed at the conclusion of written labor contracts.

If the employer has already done the duty of honesty, and because of the force majeure, the unexpected situation or the worker's refusal to sign a contract and other reasons, the labor contract has not been signed. It does not belong to the employer's "no written labor contract with the laborer" as mentioned in the relevant laws and regulations. If the employer fails to enter into a written labor contract due to the employer's reasons, the employer should pay the worker twice the wages according to law.

However, the employer has the right to refuse to sign a labor contract.

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If the fact of dissolution is established, the employer shall bear the burden of proof for the type of resignation according to the interpretation of the Supreme People's Court on Several Issues concerning the application of law in labor dispute cases.

In the judicial practice, the relevant departments will examine who is going to lift the lifting, whether it is a lifting of the consultation between the two parties, or the unilateral rescission of the laborers, or the unilateral lifting of the employing units.

According to the present law, the employer shall notify the employing unit when he unilaterally terminates the work. If the worker fails to notify the employer to leave on his own, the employer may unilaterally terminate the disposal according to the worker's requirements.

In addition, the employer shall bear the responsibilities of labor management. Therefore, the burden of proof should be imposed by the employer if he proposes to lift the form and how to rescission it.

If

The fact that the worker resigned or resigned automatically failed to provide corresponding evidence to prove it, and did not testify against the rescission of the labor contract in accordance with the law, which may be considered as an illegal termination of the labor contract by the employer.

If the employing unit violates the provisions of this law to terminate or terminate the labor contract, if the worker requests to continue to fulfill the labor contract, the employing unit shall continue to perform it. If the worker fails to continue to fulfil the labor contract or the labor contract can not continue to perform, he shall pay the worker compensation in accordance with two times the economic compensation standard stipulated in the forty-seventh article of this law.