Don'T Look At The "Signature" Thing.

In many cases undertaken by Jianglian law firm, some difficult labor disputes often focus on the identification of the form, content and significance of signing labor contracts, and often result in serious losses which can not be recovered because the parties neglect negligible signature.

Therefore, the risk management and control of signature problem can be described as fine but not small.

Case: in January 22, 2015, Xu and the company set up labor relations, because its place of service is not located in the headquarters of the company in Shanghai. Therefore, the company HR sent the documents such as labor contracts and staff manuals to Xu, asking for its signature, then sent back, and sent an email prompt. Xu returned the mail to confirm, and then returned to a labor contract to sign his name.

In January 6, 2016, Xu was unilaterally relieved of his labor contract for violation of discipline. Xu claimed that the company had not paid any more than 20 yuan for the written labor contract instead of signing a written labor contract.

During the arbitration process, it was certified that the labor contract held by the company was not signed by Xu himself.

Xu argued that he had sent his unsigned labor contract back to the company because he thought the content of the labor contract was inconsistent with the previous company's oral promise.

Jiang triangle view: the focus of this case is whether the signature on the labor contract provided by the company to the adjudicative institution is signed by Xu, so as to determine whether the company needs to pay the unsigned labor contract.

Difference.

Because Xu's location is far away from the company's headquarters, the company HR takes the labor contract sent to Xu, allowing Xu to sign it back, but no one supervises the whole process of Xu's signature on the labor contract.

Therefore, after the dispute occurred in this case, when the identification conclusion is signed by the non Xu Mou on the labor contract, the company can only verify the legal obligation of signing a written labor contract with Xu by sending e-mail to Xu Mou, sending the signing of the labor contract to Xu, and mailing the labor contract to the company by Xu. But the indirect evidence provided by the company is not enough to counter the fact that the signing of the non Xu Mou on the labor contract is not enough.

Coping strategy: for the long term signing of a labor contract, the best solution is to sign the labor contract by the staff personally with the company's experienced HR or other managers.

However, due to the diversity of the social life and the management system of each company, if the relevant personnel of the company can not witness the signing of the labor contract, we suggest that the company take the following risk precautions: first, notarization of the whole process of signing the labor contract.

The advantage of this method is that the risk of signing the labor contract is not signed by the employees. The drawback is that notarization will produce a notarization fee. Two, the third party can witness the signing of the labor contract, such as the lawyer's testimony.

Three, if the company wants to reduce the cost, it can also supervise the whole process of signing the labor contract by means of the whole process of recording, recording or video recording. However, this method has some limitations, and the recording and video recording methods are not suitable, which will cause the whole process of video data not to be reflected. Moreover, the preservation requirements of the recording and video evidence are higher. The version maintained by the audio and video recording in the original medium should be retained for possible completeness identification. Four, the employer should retain some important documents and documents formed during the process of signing labor contracts with laborers, such as the offer confirmed by the two sides, the entry registration form filled by employees, or the labor contract signing list. Because lawyers have more practical experience in preventing legal risks in practice, lawyers can basically witness the same way.

Although the fact that these materials have signed written labor contracts between employers and laborers are only circumstantial evidence, if the contents are appropriate, they will have strong proof for the signing of labor contracts between the two parties.

Case: Han's first in A company

After the expiry, he remained in the company to continue his work, but he did not sign second written labor contracts.

After that, he submitted his resignation and applied for labor arbitration to the labor dispute arbitration committee. He said that A did not renew its labor contract and asked the company to pay the double wage difference without signing the labor contract.

A believes that the main reason for the two parties' failure to renew their labor contracts is Han's refusal. A witness Liu and song confirmed that he had called the Han company to renew the labor contract by calling the company's engineering department according to the requirements of the personnel department of A company.

The court of adjudication confirmed the validity of witness testimony.

Some people believe that since the witness has proved that the company has repeatedly urged han to sign a labor contract, and the validity of the testimony has been confirmed by the court, the facts are clear.

The main reason for the failure of the company and the laborer to sign the labor contract is the subjective refusal of the laborers. Therefore, the company should not pay the double wage difference that Han has not signed a written labor contract.

In fact, this understanding is a misreading of the relevant provisions of labor laws.

According to the regulations on the implementation of the labor contract law, within one month from the date of the employment of the employer, if the employer fails to conclude a written labor contract with the employer after written notice by the employing unit, the employer shall notify the worker in writing to terminate the labor relationship without paying the economic compensation to the laborer.

If the employer fails to conclude a written labor contract with a worker for more than a month after he has been employed for more than one month, he shall pay the laborer two times the monthly salary, and make a written labor contract with the laborer. If the laborer fails to conclude a written labor contract with the employer, the employer shall notify the worker in writing to terminate the labor relationship, but the economic compensation shall be paid according to the regulations.

If the employer fails to conclude a written labor contract with a worker for a full year from the date of his own employment, he shall pay the laborer two times the monthly salary on the next day from the next day to the full year before the date of his employment. If he considers that he has entered into an unfixed term labor contract with the worker on the date of the full year of his own employment, he shall immediately make a written labor contract with the worker.

The company repeatedly urged han to renew the written labor contract, which means that different coping strategies should be established according to the specific length of labor contracts that have been established but have not yet signed labor contracts.

Coping strategies: 1. If a labor relationship has not been established for more than a month, the employer should retain the evidence to prove that the company has informed employees to sign a written labor contract. It is suggested that the labor contract should be submitted to the staff for examination and at least one time to sign the contract.

If the employee still refuses to sign a written labor contract after the expiration of the expiry date, the employer shall terminate the labor relationship with the employee within one month after the establishment of the labor relationship.

In the notice of rescission of the labor contract, it is stated that the reason for repeated notification and service is that the employee still refuses to sign the labor contract.

In this case, the employer does not need to pay any other expenses other than wages.

If an employee receives a notice of written contract signed by the employer, agrees to sign a written labor contract, but repeatedly requests for consultation on the basis of objection to some articles of the contract, and delays in signing the contract, the company shall determine the deadline for the negotiation (not exceeding one month after the establishment of the labor relations), and when the deadline reaches the deadline, the employee still refuses to sign a written contract. It is deemed that the consultation fails, and the company has the right to terminate the labor relationship on the grounds that the employee refuses to sign a written labor contract.

Once the contract is found to be unsigned, the employer should immediately notify the employee to sign a written labor contract.

In this case, even if a written labor contract is supplementation, the employer should pay the difference between the double wage difference between the employer and the Employer from the beginning of the labor contract to the actual contract period (one year after the establishment of labor relations).

If the employer and employee negotiate a written labor contract, the employee still refuses to sign a written contract when the conditions of signing by the employer are not lower than those provided by the employer in the actual performance of the contract. The employer should retain the evidence and terminate the labor contract with the employee.

At this time, the employer shall pay the economic compensation in accordance with the relevant provisions of the law.

3. Establish

It has been one year since the establishment of a labor relationship has been completed for one year and no written labor contract has been signed. After the employer finds it, it should immediately negotiate with the employee to sign a written labor contract with no fixed term.

We believe that even if the conditions for signing an unfixed term labor contract have been satisfied, the employer should still sign a written labor contract with the employee, which is the mandatory requirement of the law, and no written labor contract will cause great inconvenience and hidden danger to the management of the employer.

Under such circumstances, when the employee's signing conditions are not lower than those provided by the employer in the actual performance of the employer, the employee still refuses to sign a written contract, and whether the employer unilaterally dissolves the labor relationship. The relevant legal provisions are not clear about this. We believe that if the employer has completed the obligation of good faith and the employee still does not cooperate, the staff is a necessary management of the unit which does not cooperate with the employer, and the failure to sign a labor contract will adversely affect the establishment of the rights and obligations of both sides. Therefore, the employer can unilaterally relieve the labor relationship on the basis of retaining the relevant evidence, but it needs to pay the economic compensation according to the relevant provisions and the difference of the double wage of the labor contract.

In the process of signing a written labor contract and signing other documents, the employer must pay attention to many details in order to ensure that the relevant legal documents have legal effect.

For example, employee signature using art font, or because the employee signature is sloppy, employees should be asked to sign in regular script instead of the signature.

At the same time, the employee signed the signature date, so as to avoid unnecessary disputes in the future.

Signing different legal documents or documents requires different requirements for the format and location of signature.

There are many problems worth studying. It is necessary for employers to consider and handle the cases in different situations respectively.

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