The old driver of a transport company, receive dispatcher telephone call, morrow should take sb's place the work in the same placing's job. Because at hand had had arrangement, old driver rejected dispatcher, cannot think of, company with the driver disobedient job attempers for, undertook removing sb's name from the rolls to him. Recently, shanghai court of the first intermediate people lawfully careful writtened guarantee this has case of appeal of labor contract dispute, 2 careful maintain first instance to adjudicate, unit of cognizance choose and employ persons with employee remove for disobedient job arrangement labor contract lacks a basis, form break the law remove, unit of adjudicative choose and employ persons pays to laborer break the law remove the charge such as labor contract compensation.
The company attempers with not obedient job for remove sb's name from the rolls the driver
On December 3, 2016 evening, the son of brave of Cheng of the member that danger tastes transport company escort in transportation is abrupt fracture, cheng Yong and Sang Mu of child uncle driver ask for leave to the company hastily, send the child to hospital emergency treatment to take care of the child. Ask for leave considering two people may affect the following day carriage task, that evening, dispatcher arranges a problem to call driver Li Jian with respect to the job of mulberry wood morrow, inform Li Jian moves a class, take sb's place Sang Mu is vacant, li Jian already had the job with oneself give for arrangement refuse.
The following day, li Jian still works in his former post, sang Mu also hurrieds back post goes to work, finished carriage job. On December 8, the transport company issued announcement of a processing however, with Li Jian refus disobedient job attempers, cause great effect to company business for, the decision undertakes removing sb's name from the rolls to Li Jian.
Li Jian is very ill-affected, he is the old stuff of the company, entered firm work in October 2009, be engaged in car driving, post of escort in transportation; And his working platoon class will had arrangement in the watch on December 4, dispatcher arranges other job again, cannot finish at the same time, sang Mu also goes to work actually the following day, the company also does not have a loss. However company however with him disobedient job is arranged for direct discharge him, punishment is overweight and break the law, li Jian facilitates application labor arbitrated in January 2017, requirement transport company pays break the law remove labor contract compensation, double cease overwork pay of day and legal holiday. Arbitral adjudication supported Li Jian's request.
The transport company refuses to obey adjudication, to forensic to lodge a complaint, request court court decision affirms the company need not pay afore-mentioned salary and compensation.
Did not offer significant evidence to prove to not was subject to attemper forensic court decision removes labor contract breaks the law
Court of first instance thinks after classics cognizance, transport company with Li Jian refus disobedient job attempers, cause to company business bilateral labor contract removes for great influence, provided dispatcher testimony only however, quote Shang Qian is sufficient. And about overtime, although the transport company advocates in front courtyard careful the proportion of freight deduct a percentage from a sum of money of playday and legal holiday is higher, but its already not quote proves scale of afore-mentioned freight deduct a percentage from a sum of money during why, also did not prove this freight deduct a percentage from a sum of money already paid Li Jian what enough enclothes a transport company to ought to be fulfilled the obligation of overtime lawfully. Accordingly, court of first instance rejected the appeal of the transport company.
The transport company refuses to obey, to Shanghai one quadrangle mentions appeal.
After quadrangle classics is tried, Shanghai thinks, one of controversy focuses of this case are the transport company removes labor contract of Li Jian is lawful.
The transport company is with Li Jian refus disobedient job attempers, cause great effect to company business for, give to Li Jian remove sb's name from the rolls. But the transport company offerred evidence to prove dispatcher only ever the phone has contacted Li Jian, communicate content however unknown. And dispatcher and interests of transport company existence, its attestation also does not have other evidence mutual confirm, reason the basis that according to evidential regulation this witness testimony cannot regard cognizance case as the fact alone. In addition, li Jian still continues to work in former post that day, sang Mu also goes to work to hillock normally, the transport company also did not offer evidence to prove company business gets great influence, court of first instance maintains reason the transport company removes the behavior of labor contract lacks a basis, form break the law remove, should pay Li Jian to break the law remove labor contract compensation, do not have undeserved.
The another controversy focus of this case is whether the transport company needs to pay Li Jian overwork salary.
Unit of choose and employ persons ought to will involve worker directly the regulations system of personal interest and major item decision are collective show, perhaps tell worker. In the labor contract of transport company and Li Jian although agree Li Jian " enjoy a country to decide off day overtime (it is by basic monthly pay with day or hour in pay of trade beneficial result specific reflect) " , but this agreement is too general, specific how to reflect overwork benefit salary to did not make clear an agreement in labor contract. The overwork benefit consideration that the transport company advocates to its are offerred expresses salary of certifiable overwork benefit to be reflected mediumly in salary, but the transport company did not let Li Jian sign on watch of this overwork benefit computation affirm, fail to prove to already involved this worker the regulations system of personal interest and major item are fair show or inform Li Jian, this evidence does not have friend proof force. Accordingly, to the view that the transport company need not pay Li Jian overwork salary, one quadrangle of Shanghai does not grant to collect a letter.
Accordingly, one quadrangle of Shanghai rejects appeal, maintain original judgement.
(article place uses all be alias) the judge reminds:
