(219) No.11952, Ji 1 Minzhong
Appellant (plaintiff in the original trial): Zhao Jin, * *, *.
Authorized Agent: Liu, lawyer of Hebei Yougao Law Firm.
Authorized Agent: He, lawyer of Hebei Yougao Law Firm. Appellee (defendant in the original trial): Hebei Yuannan Airlines Co., Ltd., whose domicile is Luancheng District, Shijiazhuang City.
legal representative: Li zhanlin, general manager.
Authorized Agent: Gu Deyu, lawyer of Hebei Jushi Law Firm.
the third person in the original trial: Hebei Yuannan Investment Co., Ltd., whose domicile is No.231, Unit 65438, Shenyang Gate Building, No.2 Xiangyang Road, Chang 'an District, Shijiazhuang.
legal representative: Li Qinglin, general manager.
Litigation record
Appellant Zhao Jin, Appellee Hebei Yuannan Airlines Co., Ltd. (hereinafter referred to as Yuannan Airlines) and the third person in the original trial, Hebei Yuannan Investment Co., Ltd. (hereinafter referred to as Yuannan Investment Company) refused to accept the civil judgment of Chang 'an District People's Court of Shijiazhuang City, Hebei Province (218) No.436 at the beginning of the Republic of China, and appealed to our court. After the case was put on file in our hospital on October 14, 219, a collegiate panel was formed to conduct the trial according to law. The case has now been closed.
factual basis
Zhao Jin appeal: 1. The fourth item of the civil judgment (No.12 (218) of the People's Court of Chang 'an District, Shijiazhuang City) was revoked, and the total compensation for the appellant's salary and unpaid salary was increased by 19,375 yuan, and the flight training fee was 5,2 yuan and 2,4 yuan. 2. Maintain the first, second and third items of the civil judgment of the People's Court of Chang 'an District, Shijiazhuang City (218) No.436 at the beginning of the Republic of China; The legal costs of this case shall be borne by the appellee.
Yuan Nan Airlines replied that 1. Rejecting the appellant's appeal in the second instance in accordance with the law violated the procedural provisions. 2. Revise the sentence according to law and not pay Zhao Jin's arrears of wages and living expenses.
Yuannan Investment Company did not state its opinions.
Zhao Jin sued the court of first instance: 1. The defendant and the third party were ordered to jointly pay the plaintiff's labor remuneration of 96,715.4 yuan and the compensation for overdue payment of labor remuneration of 48,357.7 yuan; 2. Order the defendant and the third party to jointly pay double wages of 15, yuan for the unrerenewed labor contract; 3. The defendant and the third party were ordered to jointly pay 65,173 yuan of overtime pay for legal holidays and 32,586.5 yuan of compensation for overtime pay; 4. Order the defendant and the third party to jointly pay the compensation for violating the probation period. 34.8 yuan; 5. Order the defendant and the third party to jointly pay the plaintiff's annual flight training fee of 2182 yuan; 6. Order the defendant and the third party to pay social insurance for the plaintiff; 7. The legal costs shall be borne by the defendant and the third party. After that, the plaintiff added a lawsuit to request a judgment to terminate the labor relationship between the original defendant and the third party, and the defendant and the third party paid the plaintiff 35, yuan in economic compensation for the termination of the labor relationship.
the court of first instance found the fact that on June 8, 216, the plaintiff Zhao Jin applied for the pilot position of the defendant Yuannan Airlines. According to the application registration form, the plaintiff started to work in Hanxing General Aviation Co., Ltd. in 212, with the original salary of 2,/month, the official entry time of 265,438+July 26, and the initial salary of 12,/month. The preliminary examination opinion of the application registration form stated that "the pilot transfer fee is 36, yuan, which meets the recruitment conditions of our company and agrees to be hired immediately". On September 7, 216, the plaintiff and the defendant signed a written labor contract. The contract period is from July 26, 216 to July 25, 217, and the probation period is from July 26, 216 to June 26, 21. The post is a pilot in the navigation department. (The probation period is 8% of the official monthly salary) Party A may make adjustments according to Party B's work performance or ability, but it shall not be lower than the minimum wage standard in Shijiazhuang. Article 8 of the Labor Contract stipulates that during Party B's service with Party A, Party A shall provide post retraining for Party B according to the development needs of the company, and Party B shall unconditionally obey the arrangement of Party A.. (1) Party A pays a special training fee of 369,968 yuan for Party B (Party B's original work unit: Zhuhai Hanxing General Aviation Co., Ltd.), that is, the training fee paid by Party A for Party B's original work unit is divided into two stages. In the first stage, Party A pays 18, yuan to Party B, and Party B pays the transfer training fee to the original unit and coordinates the transfer files and flight data with the original unit. Party B shall hand over the flight files, flight driver's license and other information to Party A within 3 working days after Party A pays the first transfer training fee, otherwise Party A has the right to demand Party B to refund the fee and compensate for the liquidated damages, and has the right to terminate the contract. In the second stage, after Party B has worked for Party A for one year, Party A will pay the rest of Party B in installments by transfer. At the same time, in order to improve Party B's technical level and working ability, Party A is willing to invest a certain amount of continuing education expenses (the specific amount is subject to the actual expenses incurred by Party A), and Party B must serve Party A for 3 years (until Party B reaches the age of 7), and the service period does not conflict with the term of the labor contract. (2) After serving Party A for 3 years, Party B may continue to serve Party A, and may also propose to transfer or resign. (3) If Party B has worked for Party A for less than 3 years, and proposes to transfer or resign early due to personal reasons (including the loss of flight ability in the first 15 years), it shall pay Party A the same amount of transfer fee, continuing education fee and corresponding taxes, and pay the training fee paid by Party A to the training institution, and then pay compensation to Party A in one lump sum within 5 working days. Where the labor contract is dissolved or terminated for reasons other than Party B's, the next work unit where Party B works for Party A shall bear the special training fee paid by Party A for Party B, namely, the transfer fee (calculated by remaining service years) and the training fee for continuing education. (4) If the Labor Contract is dissolved or terminated due to objective reasons of Party A, and Party B has served Party A for less than 3 years, it shall be implemented in accordance with the provisions of the Labor Contract Law on the premise of not violating the provisions of the third paragraph of this article, but Party B shall not dissolve the Labor Contract during the service period, unless there are circumstances agreed in this agreement. ".265438+On June 8, 27, the original defendant and the defendant signed the Supplementary Agreement to the Labor Contract, which stated" 1. The premise of the agreement is 1.1. Party B shall obey Party A's decision to reasonably adjust its post, post and work place according to the needs of operation and management. 1.2 Party A has the right to actually evaluate Party B's work, and give corresponding posts and treatment or punishment according to the evaluation results. Second, the agreement on flight subsidies. From July 26th, 216, Party B has a flight subsidy, and the subsidy standard is 12 hours per month and 2 yuan per hour. Payment method: the flight allowance of Party B before the departure date (265438+April 2, 27) shall be calculated and supplemented together. The subsidy standard agreed in the second paragraph of this agreement is guaranteed subsidy. Where Party B exceeds the guaranteed flight hours, the specific subsidy standard shall be negotiated by both parties separately. "After the plaintiff joined the job, because the defendant was still in the preparatory period and did not have the ability to receive pilots, the plaintiff did not transfer the file relationship to the defendant and did not work as a pilot. During the plaintiff's work, the defendant paid the plaintiff's salary until September 265438+27. The salaries of the plaintiff from August 216 to September 212 were 12,15 yuan, 12,556 yuan, 15, yuan and 15, yuan respectively. 174 yuan, 174 yuan, 174 yuan, 174 yuan, 175 yuan, 151 yuan, the defendant failed to pay social insurance for the plaintiff. During this period, the defendant paid the plaintiff a transfer fee of 18, yuan on September 4, 216 and 189,968 yuan on August 6, 217, but the plaintiff did not transfer the second transfer fee of 18,968 yuan to the original work unit. On March 5, 218, the plaintiff applied for labor arbitration to terminate the labor relationship between the plaintiff and the defendant. The defendant paid him 94,9 yuan for labor remuneration, 47,45 yuan for overdue payment, 15, yuan for double wage difference, 65,173 yuan for overtime work on holidays, 32,586.5 yuan for overdue payment, 38,4 yuan for violating probation and 35, yuan for economic compensation for dissolving labor relations. In 218, the training fee was 5,2, and social insurance was paid. In June 18, the Labor and Personnel Dispute Mediation and Arbitration Commission of Chang 'an District, Shijiazhuang City made an arbitration award (218) No.14, ruling that the defendant paid the plaintiff labor remuneration in February 217. The plaintiff refused to accept the arbitration award and brought a lawsuit to our court. The defendant acknowledged the arbitral award. In addition, on March 27th, 28, 265438, the defendant applied for labor arbitration and asked the plaintiff to return the special training fee of 399268 yuan. During this period, the defendant sued the case of the plaintiff's duty embezzlement to the Luancheng District Public Security Bureau of Shijiazhuang City, and then the Luancheng District Public Security Bureau of Shijiazhuang City made a notice not to file the case. Regarding the labor contract signed by the original and the defendant, the defendant submitted the non-final arbitration award (Zhu Jin Lao Zhong Case Zi [214] No.563) to the Labor and Personnel Dispute Arbitration Commission of Jinwan District, Zhuhai City, claiming that the plaintiff concealed the actual remuneration of the previous employer, which led the defendant to declare the labor contract signed with it invalid against its true meaning. According to the arbitration award, the plaintiff claimed that his living expenses were 2, yuan/month before June 265,438+3, and paid at 3, yuan/month from March 265,438+4 to April 22, 265,438+4. Regarding the time limit for the plaintiff to work for the defendant, the plaintiff claimed that the defendant owed the plaintiff wages from June 217, but the plaintiff worked until February 218 due to the transfer fee, and submitted the sign-in form and attendance record, which was not recognized by the defendant, saying that the plaintiff stopped working after a dispute between the two parties in mid-September 217 due to the invalidity of the contract and the transfer fee, and also submitted a punch card. The defendant rejected the attendance sheet and attendance record submitted by the plaintiff, saying that the attendance software advocated by the plaintiff was not used by the defendant and the third party, and the electronic evidence was not notarized; The plaintiff also rejected the punch-in record submitted by the defendant, saying that the punch-in record was inconsistent with the salary table submitted by the defendant, and the defendant deleted the plaintiff from the attendance record without the plaintiff's resignation and the labor relationship between the two parties. Both the defendant and the plaintiff applied for witnesses to testify in court. The plaintiff applied for witness Song, claiming that the plaintiff also participated in the study of Kitty Hawk 5 in October 21165438 and went to the Northeast for training. In February 218, the plaintiff was taken away by the police while working in the defendant's office. The defendant applied for witnesses Liu and Cao to prove that the plaintiff did not go to work after the middle of September 265438+27. The defendant refused to recognize the witness testimony of the plaintiff on the grounds of interests, and the plaintiff also refused to recognize the witness testimony of the defendant. In addition, it was told that the plaintiff did not go to work since mid-September 216, and then the human resources department called him to work, but the plaintiff kept coming, but he did not submit evidence or issue a certificate to the plaintiff to terminate the labor relationship. The plaintiff submitted the training fee invoice for October 218 65438+24, claiming that the plaintiff participated in the annual inspection training of flight license of Hebei Zhiyuan General Aviation Co., Ltd. during the labor relationship between the two parties, resulting in a training fee of 5,2 yuan, which the defendant should pay. The defendant had no objection to the authenticity of the invoice, but said that it could not prove that the plaintiff worked in the defendant's office during this period. The two parties did not agree that the training fee should be paid by the defendant, and the invoice was issued to the plaintiff himself. The plaintiff submitted his work permit to claim that he was assigned to a third party by the defendant and asked the third party to bear joint liability. The work permit shows that it belongs to Yuannan Airlines, and the pilot on duty, the defendant and the third party will not be recognized on the grounds that the work permit is not stamped.
the above facts are proved by the arbitration award, labor contract, supplementary agreement, bank transaction details, training fee invoice, witness testimony submitted by the plaintiff, the application registration form, arbitration award, salary table and other evidence submitted by the defendant, and the court transcript, which is enough to be recognized.
The court of first instance held that the focus of this case was: 1. Whether the labor contract and supplementary agreement signed by the original and the defendant are valid; The deadline for the plaintiff to work for the defendant. In this case, the defendant claimed that the original salary of his last work unit recorded in the plaintiff's application registration form was 2, yuan/month, which was quite different from the original salary level stated in Zhu Jinlao Zhong Zi [214] No.563 non-final arbitration award. The plaintiff used fraudulent means to fabricate important facts, causing the defendant to fall into misunderstanding and sign a labor contract with him, and the labor contract between the two parties was invalid. The plaintiff claimed that the original employer paid 8, yuan/month as the basic salary, and there were welfare rewards such as flight subsidies totaling 2, yuan/month. Although there is a big difference between 8, yuan/month and 2, yuan/month, it does not constitute the main condition for the contract to be invalid. The plaintiff has the qualification to fly, and the defendant has not provided evidence to prove that the plaintiff does not have the actual operation ability. Therefore, our court finds that the labor contract and supplementary agreement signed by the original and the defendant are legal and valid. Regarding the time limit for the plaintiff to work for the defendant, the plaintiff and the defendant hold their own words. The plaintiff claimed that the defendant owed the plaintiff a salary of 217 to 1, but the plaintiff continued to work until 218 due to the transfer fee. It was told that the plaintiff stopped working in mid-September, 265438+27 after the two parties had a dispute over the invalidity of the contract and the transfer fee. The attendance records submitted by the plaintiff are contradictory and flawed in form, and the punch records submitted by the defendant are not the original carrier, which cannot prove their respective claims. However, combined with the transfer fee paid by the defendant to the plaintiff, the plaintiff did not pay the second payment of 189,968 yuan to the original employer. The plaintiff stated by the plaintiff's witness was taken away by the police for questioning while working in the defendant's office in February 218, and the defendant accused the plaintiff of job occupation. At the same time, the defendant did not terminate the labor relationship with the plaintiff during the above period, nor did he submit evidence to prove that he informed the plaintiff to go to work during the above period. Therefore, our court found that the defendant stopped paying the plaintiff's salary in October 217 because of the dispute over the validity of the labor contract and the transfer fee, and the plaintiff did not work normally for the defendant until the day when the plaintiff was taken away by the police at the defendant's place for questioning in February 218. If the plaintiff fails to work for the defendant normally, he shall be deemed as a non-employee, and the defendant shall pay the plaintiff the living expenses from June 217 to February 218 at 8% of the minimum wage, totaling 1.65 yuan × 8% × 5 = 6 and 6 yuan. Regarding the salary arrears claimed by the plaintiff in February and February of 217, the salary table submitted by the defendant showed that the defendant paid him 1,645 yuan and 12,857 yuan, which was lower than the salary of 15, yuan/month stated in the labor contract. The labor contract showed that the plaintiff applied the flexible working system. The plaintiff's claim for compensation for overdue payment of labor remuneration is not supported by our court because the additional 5% economic compensation falls within the scope of acceptance by the labor administrative department. If the employer fails to pay the labor remuneration in full and on time and fails to pay social insurance for the employee according to law, the employee may terminate the labor contract, and the employer shall pay the economic compensation for the termination of the labor relationship. During the plaintiff's work in the defendant's office, the defendant failed to pay the plaintiff's salary in full, so the plaintiff claimed to terminate the labor relationship with the defendant in February 265438+28, which was supported by our hospital, and the defendant should pay the plaintiff economic compensation for the termination of the labor contract. Although the term of the labor contract signed by the original defendant was from July 26th, 216 to July 25th, 217, the plaintiff continued to work for the defendant after the expiration, and the defendant paid the plaintiff's salary on a monthly basis, which was regarded as the continuation of the labor contract between the two parties. Therefore, the plaintiff's claim for not renewing the labor contract and double the salary is not supported by our court. Although the term of the labor contract signed by both parties is one year, the labor contract stipulates that the defendant shall pay the plaintiff.