I. Model indictment for labor arbitration (workers' lawsuit)
Plaintiff: XXX, female, Han nationality, born on XX 19XX, with address at No.96, XX Group, XX Town, XX County, XX City, Anhui Province, ID number XXXXXXXXXXX, and telephone number180xXXXXXX.
Defendant: Suzhou XXXXXX Co., Ltd., domicile: Suzhou Tianlong XXXXXX, and delivery address: Suzhou XXXXXXXX;
Legal Representative: XXXX, general manager of this company.
The plaintiff and the defendant had a labor dispute because they refused to accept the arbitration award (No.(20 13) XX 1 of the Wuzhong District Labor and Personnel Dispute Arbitration Commission in Suzhou, and brought a lawsuit to your hospital.
Litigation request:
(1) ordered the defendant to immediately pay the plaintiff double wages, namely 50438+0738+0 yuan;
(II) The defendant was ordered to pay the plaintiff compensation for the illegal termination of the labor contract 18307.42 yuan.
(3) The defendant was ordered to pay the salary deducted by the plaintiff from April 2065,438+02 to July 2065,438+03, amounting to 9478.84 yuan;
(4) ordered the defendant to pay the plaintiff overtime 17645.77 yuan;
(5) The defendant was ordered to compensate the plaintiff for the economic loss of 7956 yuan caused by failure to apply for social security and pay social insurance premiums;
(6) The defendant was ordered to pay the plaintiff 4590 yuan in unemployment benefits.
(7) Ordering the defendant to bear the transportation expenses and lost time for witnesses to testify in court, 300 yuan;
(8) The legal costs of this case shall be borne by the defendant.
Facts and reasons:
(1) In March, 2065438+02, the plaintiff went to the defendant's office to work as a clerk and salesman, and she had a rest every Monday and went to work as usual on weekends. Both parties agree that the labor remuneration is 1800 yuan/month, and the proportion of sales commission payment is 0.8%; As long as there is a set of shops, the monthly salary will increase by 200 yuan, and the percentage of commission will also increase by 0.9%. 2065438+April 2002, after the plaintiff closed the store, the basic salary except the commission was 2000 yuan/month. At the end of 20 12, 12, the plaintiff asked the defendant for leave because her mother was hospitalized. Because of the emergency, the defendant verbally recognized it and said that the salary of 20 12 and 12 would be transferred to the plaintiff through the Agricultural Bank. On April 20 13, the plaintiff's mother continued to work in the company after her illness became stable. Both parties agree that her salary will be increased to 2300 yuan/month, and the percentage of commission will be adjusted to 0.5%.
Since March 20 12, the plaintiff has worked seriously and faithfully; However, the defendant never signed a written labor contract with the plaintiff, did not go through social security procedures and pay social insurance premiums, and deducted the plaintiff's salary without any reason, which made the plaintiff unable to enjoy normal medical care and other related social security benefits.
On June 20 13, the defendant hired others to replace the plaintiff's work. In order to avoid the allowances and subsidies that the plaintiff needed to pay when she was about to get pregnant and the inconvenience caused to her work, the defendant illegally dismissed the plaintiff on July 20 13, resulting in the plaintiff's unemployment, and the company refused to accept the indictment for labor arbitration.
The above-mentioned behavior of the defendant violated the Labor Contract Law and its related provisions, and seriously infringed on the plaintiff's related rights. Accordingly, in order to safeguard their legitimate rights and interests, the plaintiff had to apply to the Labor and Personnel Dispute Arbitration Committee of Wuzhong District, Suzhou for arbitration.
(2) The Arbitration Commission of Wuzhong District, Suzhou City (hereinafter referred to as the "Arbitration Commission") has arbitrary and one-sided identification of the evidence in this case, which leads to unclear facts and wrong application of the law.
1, on the problem of double wage difference; According to the provisions of the Labor Contract Law, double wages should be paid 1 1 month, and then according to Article 2 of the Guiding Opinions of Jiangsu Higher People's Court and Provincial Arbitration on the Trial of Labor and Personnel Dispute Cases, the limitation period is calculated from the day after working for one year. The calculation base is my salary. According to the wage payment regulations of Jiangsu Province, my salary is hourly salary, piece-rate salary, bonus, allowance, overtime salary and salary paid under special circumstances, all of which are my labor income.
In the arbitration award of the arbitration commission, the arbitration commission only supports the nine-month double wage difference, which is unfounded in the law. Although the plaintiff asked for leave in 10 and 1 1 two months, the labor relationship between the two parties was not dissolved or terminated, and the law did not clearly stipulate that it was not necessary to pay double wages in the months of leave. From the perspective of jurisprudence and legislative spirit, "paying double wages" belongs to the nature of punishment; In other words, as long as a labor contract is not signed within one year, the labor relationship still exists. No matter whether the laborer provides labor normally or not, the employer should pay the laborer twice the salary difference according to the average monthly salary. The calculation base of double wage difference should be calculated according to the plaintiff's salary, that is, the base is basic salary+commission amount+overtime pay; The arbitration commission refused to accept the plaintiff's commission amount on the grounds of insufficient reasons.
2. About overtime pay: First, the burden of proof of the Arbitration Commission is reversed. In the absence of special agreement, the calculation base of overtime pay should be the salary that the applicant should pay according to law, and the overtime pay that the applicant should pay is the basic salary+sales commission. For these two points, the applicant provided the payroll, witness testimony and recording to confirm, which is enough to form preliminary evidence to confirm the existence of the respondent's time card and payroll; If the respondent fails to provide it, it shall bear the adverse consequences according to law. Secondly, in the calculation details of overtime pay submitted by the applicant to the arbitration commission, the applicant distinguishes overtime pay between weekends and legal holidays; During the arbitration hearing, the plaintiff's specially authorized agent also clearly stated the overtime pay on weekends and legal holidays. There is no legal basis for the Arbitration Commission to calculate overtime pay according to Suzhou minimum basic wage standard.
3. On the issue of economic compensation: the arbitration commission should apply the principle of inversion of burden of proof, which is a mistake in applying the law; Moreover, there is no mention of the recording provided by the applicant of the respondent's illegal termination of labor relations, which is intentional and biased and obviously unfair. According to Article 13 of the Evidence Rules and Interpretation of the Supreme Court on the Trial of Labor Dispute Cases 1, in labor dispute cases, if a labor dispute occurs due to the employer's decision to dismiss, expel, terminate the labor contract, reduce labor remuneration, and calculate the working years of workers, the employer shall bear the burden of proof. According to Article 14 of the Guiding Opinions of Jiangsu Higher People's Court and Provincial Arbitration on the Trial of Labor and Personnel Disputes, if the employee claims to be verbally dismissed by the employer and the employer claims to leave the job voluntarily, the employer shall bear the burden of proof for the fact that the employee voluntarily leaves the job. If the employer fails to provide evidence, it will bear adverse consequences.
4. Economic losses caused by failure to pay social insurance premiums: This part of losses includes not only the loss of being unable to enjoy pension, medical care, maternity, unemployment and other benefits due to failure to pay social insurance, but also the loss of actual expenses; It also includes the loss of social insurance premiums. Although the social insurance premium that the employer should bear is paid directly to the social insurance institution, the direct beneficiary is the laborer, who is also the owner of this social insurance premium in essence, indirectly controls this part of the fee and only deposits it into the account of the social insurance institution. The arbitration commission does not support or handle this, and the company without legal evidence refuses to accept the labor arbitration indictment by default.
Judging from the provisions of the Labor Dispute Mediation and Arbitration Law and its legislative spirit, as long as social insurance disputes occur between workers and employers, rather than between workers and administrative organs, they are all labor disputes, and the labor arbitration commission and the people's court should accept them. Item 4 of Article 2 of the Law stipulates: "This Law shall apply to the following labor disputes: disputes arising from social insurance, etc." . The subject of social insurance disputes here refers to workers and employers, not workers and administrative organs. Paragraph 3 of Article 83 of the Social Insurance Law stipulates that individuals and employers may apply for mediation, arbitration or bring a lawsuit in accordance with the law in case of social insurance disputes.
To sum up, we request your hospital to find out the facts in accordance with the law and support the plaintiff's above claims.
I am here to convey
Suzhou Wuzhong District People's Court
Plaintiff:
Year month day:
Second, can the indictment be handed over to the defendant's family during the trial stage?
The prosecution opinion is an important legal document of the procuratorate and cannot be shown to family members or criminal suspects. The reason is very simple, because the criminal procedure law does not stipulate that the prosecution opinion should be served on the criminal suspect, but only stipulates that the indictment should be served on the defendant at the trial stage.
Third, how to write an indictment after labor arbitration?
The indictment after labor arbitration shall include the following contents:
(1) Basic information of both parties. The complaint shall state the employee's name, gender, date of birth, nationality, permanent address and contact telephone number. The parties to the unit shall specify the name of the company, the name of the legal representative, the registered place and regular office of the company and the contact telephone number of the unit. (2) Cause of action: labor dispute.
(3) Litigation request: clearly state the purpose of bringing a lawsuit to the court.
(4) Facts and reasons: stating the factual basis of the prosecution or request.
When the employer infringes upon the rights and interests of the workers, the workers should actively safeguard their rights and promptly report to the relevant departments. The above is an introduction by the editor of Legal Express to the Model Complaint of Labor Arbitration (Labor Litigation). I hope it helps you. If you don't know how to sue, you can consult a legal express lawyer, who will give you professional advice.
Disclaimer: This content is synthesized by the author according to laws and regulations, government official website and Internet related content. If there is any infringement or error, please contact the platform to delete it.
Thumbs up
share
Don't understand? Why don't you consult a lawyer directly?
Average 3 minutes response
Legal express consulting assistant