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The employer shall pay double wages if the worker refuses to sign the employment contract without taking further measures

The worker refuses to sign the employment contract

By Strange SuePublished 2 years ago 4 min read
The employer shall pay double wages if the worker refuses to sign the employment contract without taking further measures
Photo by Saulo Mohana on Unsplash

On July 1, 2021, Han Moumou went to work for Xiongxi Company as a cold dish midwife. on October 18, 2021, Han Moumou submitted a resignation request. on October 28, 2021, Xiongxi Company suspended operations due to epidemic control in the Xining area, but during the period from October 28 to October 31, Han Moumou was engaged in part of the back room work at the request of Xiongxi Company. on November 20, 2021, the After Xiongxi resumed operations, Han did not return to work from November 1, 2021. During the trial, Han acknowledged that Xiongxi had notified him to sign a written employment contract, but refused to do so on the grounds that the contracted salary did not correspond to the actual agreement.

On November 19, 2021, Han Moumou applied for labor arbitration to the West District Labor Dispute Arbitration Commission, demanding that Xiongxi pay the unpaid wages and double wages for the period when the written labor contract was not signed, and the Commission issued an Arbitration Award on January 24, 2022, ruling that: "First, the respondent shall pay the applicant's October 2021 wages 10,000 yuan; ii. the respondent shall pay the applicant 20,000 yuan of double wages for the period from September 1 to October 31, 2021 when no labor contract was signed; iii. the respondent shall pay the applicant 3678.16 yuan of wages for eight days without rest; the above three items total 33678.16 yuan, which shall be paid within fifteen days from the effective date of this award. Fourth, other requests are not supported". Later, Xiongxi was not convinced and filed the present lawsuit.

The court of first instance held that the focus of the dispute was: first, whether Xiongxi should pay the economic compensation for the termination of the labor contract of 10,000 yuan and the salary of 5,666 yuan for the period from November 1 to 17, 2021; second, whether Xiongxi should pay Han Moumou double the salary for the period when no written labor contract was signed.

On whether Xiongxi Company should pay the economic compensation for the termination of the labor contract of 10,000 yuan and the salary of 5,666 yuan for the period from November 1 to 17, 2021. In this case, Han Moumou was recruited by Xiongxi Company to work for Xiongxi Company, and a labor relationship was established between the two parties from the date of employment. Han is a person of full civil capacity, with the ability to decide his own behavior and the ability to judge the consequences of his behavior. For personal reasons, he voluntarily applied to leave the company on October 18, 2021, which is regarded as his voluntary termination of the labor contract with Xiongxi Company, and the labor relationship between the two parties shall be terminated on October 31, 2021. Therefore, Han Moumou's request for Xiongxi to pay the economic compensation for the termination of the labor contract of 10,000 yuan and the wages from November 1 to 17, 2021 is not supported by the law.

Regarding whether Xiongxi Company should pay Han Moumou two times the wages during the period when no written labor contract was signed. According to the first paragraph of Article 10 of the Labor Contract Law of the People's Republic of China, a written labor contract shall be concluded when a labor relationship is established. The second paragraph stipulates that if a labor relationship has been established and a written labor contract is not concluded at the same time, a written labor contract shall be concluded within one month from the date of employment. Paragraph 1 of Article 82 stipulates that if an employer fails to conclude a written labor contract with a worker more than one month or less than one year from the date of employment, the employer shall pay the worker two times the monthly wages. In this case, on July 1, 2022, Xiongxi Company and Han established a de facto labor relationship, and on August 1, 2022, Xiongxi Company notified Han to sign a written labor contract, which Han refused to sign on the grounds that the wage composition did not match the agreement, but Xiongxi Company did not notify Han in writing of the termination of the labor relationship in accordance with the provisions of the Labor Contract Law, so it should bear the corresponding two times of wages. Considering the fact that Xiongxi had notified Han to sign a written labor contract, the first trial supported the amount of double wages of RMB 9,890 yuan for September 2021 + RMB 10,000 yuan for October 2021, totaling RMB 19,890 yuan with reference to the actual compensation obtained by Han during the period from September 1, 2021 to October 31, 2022 as the base. Now Han Moumou engaged in the catering industry, according to its industry characteristics of overtime is the norm, 10000 yuan should be the same industry normal salary income, so the Xiongxi company proposed double wages should be calculated in accordance with the fixed wage of 3000 yuan, the first trial is not accepted.

The first trial ruling: First, Xiongxi company within ten days after the effective date of this judgment to pay Han Moumou October 2021 wages of 10,000 yuan, 8 days of unpaid vacation wages of 3,678.16 yuan; Second, Xiongxi company within ten days after the effective date of this judgment to pay Han Moumou not signed a written labor contract during the period of double wages of 19,890 yuan.

After the first trial, Xiongxi Company filed an appeal.

The second trial held that Han Moumou joined Xiongxi on July 1, 2021, and although the two parties did not sign a written labor contract, a de facto labor relationship was formed. Xiongxi Company believes that the failure to sign the labor contract is the subjective malice of Han Moumou, the fault lies in Han Moumou, Xiongxi Company should not bear the double wages during the period of failure to sign the written labor contract. The court held that the parties did not sign the labor contract is a fact, in Han Moumou proposed to refuse to sign the contract Xiongxi company did not take any measures, so the original judgment ordered it to bear double wages in accordance with the provisions of the law, the original judgment found that the facts are clear, the verdict is accurate, should be upheld.

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