Corporate Culture of Qingdao Lisan Group

Evidence submitted by the parties, cross-examination opinions of the parties and the adoption of evidence by the court of first instance:

1. Xu Pengfei submitted the receipt and explanation, which prove that Xu Pengfei paid the advance payment of 20,000 yuan to Morris Hotel on February 23rd, 2009, and asked Morris Hotel to return it. As Li San Group is the company that manages Moliis hotels, Li San Group should be jointly and severally liable for the repayment of the above debts, and this request has nothing to do with Sino-German-American companies. Morris Hotel has no objection to the authenticity of the receipt, but the receipt belongs to the catering service contract relationship between Xu Pengfei and our company, not a labor dispute relationship, and should not be handled in this case. If Xu Pengfei thinks he didn't eat, he should claim compensation from our company according to law. The authenticity of the statement needs to be confirmed after the court. Even if the evidence is true, it can't reflect the relationship between Li San Group and our company and can't prove its certification. Li San Group cross-examined, the authenticity of the receipt can not be confirmed, but it has nothing to do with our company. Our company does not directly collect relevant funds, and Li San Group and Moliis Hotel are economically independent. The cross-examination opinions stated are the same as those of Morris Hotel. The cross-examination between China, Germany and the United States has nothing to do with our company.

The court of first instance held that the receipts in this group of evidence were true, lawful and relevant, and could be used as the basis for ascertaining the facts of the case. The authenticity of the explanation and the validity of the proof need to be determined in combination with other evidence. The date recorded on the receipt is 65438+February 65438+March 2009, showing that the payer is Xu Pengfei and the amount is 20,000 yuan. The reason for the receipt is "catering advance payment" and stamped with "special financial seal of Qingdao Lisan Hotel Co., Ltd.". The content of the explanation is: "Qingdao Lisan Zhongdemei Water Equipment Co., Ltd. is a holding subsidiary of Qingdao Lisan Group Co., Ltd., specializing in the production and operation of water supply equipment, and Lisan Group has administrative functions for it." It is stamped with the seals of Li San Group and Sino-German-American Company.

2. Xu Pengfei submitted a transaction detail of Huaxia Bank, which proves that the average salary in Xu Pengfei from July 20 15 to June 20 16 was 337 1 yuan. Li San Group cross-examined that it had no objection to the authenticity of the evidence, but had objections to the matters to be proved, and the average monthly salary should be 2520 yuan. Morris Hotel and Sino-German-American Company said the evidence had nothing to do with it. Xu Pengfei retorted that the salary calculated by Xu Pengfei is the paid salary recorded in the bank account details plus the monthly salary deducted before the reward, and the monthly average salary before leaving the company 12 months totals 337 1 yuan.

The court of first instance held that the evidence was true, lawful and relevant and could be used as the basis for ascertaining the facts of the case.

3. Xu Pengfei submitted thirty-three award certificates, which prove that during Xu Pengfei's work in Li San Group, Li San Group deducted Xu Pengfei's salary 19389 yuan. Li San Group cross-examined that the authenticity needs to be confirmed by the court. Even if the evidence is true, it cannot be proved that this part of the money was withheld from Xu Pengfei's salary. As can be seen from the contents of the evidence, the pre-reward is only valid after completing the contract period in Xu Pengfei and working continuously for 20 years, and the resignation in the middle is invalid. At present, Xu Pengfei has worked in our company for less than 20 years and has left, so our company should not pay this fee. Li San Group did not submit implementation opinions after the trial. Morris Hotel and Sino-German-American Company said the evidence had nothing to do with it. Regarding the nature of pre-reward, Xu Pengfei said that pre-reward is deducted according to a certain proportion of wages payable and is part of wages; Li San Group said that the pre-reward is calculated according to a certain proportion of the wages payable, and the essence is a conditional bonus. Upon inquiry by the court of first instance, Xu Pengfei said that he did not claim the right to return the advance payment to Morris Hotel and Sino-German-American Company. After the trial, Li San Group did not submit an execution opinion on the authenticity of the evidence.

The court of first instance held that the evidence was true, legal and relevant, and its probative effect should be determined by combining the evidence of the whole case. The full name of this award-winning certificate is "Additional Pre-award Certificate of Li San Group", and it is stamped with the special financial seal of Li San Group. The column of "Effective Conditions of Pre-award" indicates: "1, signed a labor contract for 20 years or more, worked continuously for more than 20 years, and the pre-award is valid for 20 years. If a labor contract has been signed for 20 years or more and has worked continuously for more than 20 years, and the pre-reward is less than 20 years but reaches the legal retirement age (if the retirement age is agreed by both parties, the time agreed by both parties shall prevail), the pre-reward is valid. 2. If the labor contract has not been signed or the term of signing the labor contract is less than 20 years, and there is no substantial and effective credit commitment or credit guarantee commitment to the company, the pre-reward will be effective only if it reaches the statutory retirement age and has worked in the company for more than 25 years continuously, and it will be invalid if it leaves the company halfway. 3. If the pre-reward of the labor contract expires less than 20 years, the pre-reward is invalid. 4. If the pre-award has been completed for 20 years and the labor contract has not expired, the pre-award is invalid. " There is a "statement" on the back of the pre-award certificate, the second of which reads as follows: "This reward is an additional reward given by the company to encourage employees to abide by contracts, agreements and commitments, and has nothing to do with employees' wages, monthly salary, annual salary, overtime pay, various subsidies and various rewards. "

4. Xu Pengfei submitted thirty-nine receipts, which prove that Li San Group withheld Xu Pengfei's salary 1842. 1 yuan as a charity fund, and Sino-German-American Company withheld Xu Pengfei's management fee of 675.07 yuan, which has nothing to do with Morris Hotel. Li San Group refused to recognize the authenticity of the evidence in cross-examination, and the authenticity of 2 1 stamped receipt needs to be verified. Even if it is true, the receipt collects union membership dues, which is a legal obligation that employees should perform to the union according to law. The union is used for employee welfare and the company should not return it. The other eight receipts are not recognized without our official seal. The remaining five receipts for utilities are the actual expenses incurred by Xu Pengfei and Sino-German-American companies in renting houses, which have nothing to do with our company; The authenticity of the five donation vouchers remains to be verified. Even if it is true, it is Xu Pengfei's voluntary donation through the trade union, including Ya 'an disaster relief and love donation. This part of the money is a charity donation, and our company has no obligation to return it. Morris Hotel Cross-examination has nothing to do with our company. China, Germany and the United States cross-examined, and the authenticity of five water and electricity bills receipts needs to be verified. Even if it's true, that's what Xu Pengfei actually paid for renting our house, which has been spent and should not be returned. The remaining receipts have nothing to do with our company. Xu Pengfei retorted that Li San Group promised to provide free dormitory, accommodation and water and electricity when recruiting. Charity funds, union dues and public utility fees were forcibly deducted by the defendant, and Xu Pengfei had no autonomy. The average salary claimed by Xu Pengfei does not include the amount specified in the evidence.

The court of first instance held that the authenticity, legality and relevance of this group of evidence should be determined in combination with the evidence of the whole case.

5. Xu Pengfei submitted the Labor Contract Termination Report, which proves that Xu Pengfei was employed by Lisan Group on February 2, 2009, and the labor relationship with Lisan Group was terminated on July 20, 2009, because Lisan Group failed to pay social insurance and overtime pay. Li San Group should pay economic compensation, while Morris Hotel and Sino-German-American Company need not bear the responsibility of economic compensation. Li San Group believes that the authenticity of the evidence needs to be confirmed by the court. Even if the evidence is true, our company will not admit Xu Pengfei's reasons for resignation. Whether to pay social insurance needs to be verified after the court, and his reasons for paying economic compensation cannot be established. Both Morris Hotel and Sino-German-American Company claimed that the evidence had nothing to do with it.

Upon inquiry by the court of first instance, Xu Pengfei claimed that the report was issued by Li San Group, and the contents were written by Li San Group. Li San Group said that this needs to be verified by the court. Li San Group did not submit implementation opinions after the trial. The court of first instance held that the evidence was true, lawful and relevant and could be used as the basis for ascertaining the facts of the case. The circular said: "Xu Pengfei, CoCo Lee and other two comrades of our company (the list is attached) have dissolved/terminated the labor contract, and they are now reporting for the record." Xu Pengfei's entry date was recorded as 65438+February 265438+October 2009, and the labor contract termination date was recorded as 2065438+July 2006. The reason for termination is "overtime with low salary and no insurance". The report is stamped with the official seal of Li San Group.

Li San Group, Morris Hotel and Sino-German-American Company did not submit evidence.

It was also found out that the original name of Morris Hotel was Qingdao Lisan Hotel Co., Ltd., and it was renamed Qingdao Lisan Morris Hotel Co., Ltd. on September 25, 20 12.

Xu Pengfei said that his working experience in Li San Group was as follows: he started to work as a clerk on February 2, 2009, and left on July 20, 2009, because Li San Group failed to pay social insurance and overtime pay for him. Average salary before leaving 12 months is 33,765,438+. Li San Group promised to waive any room and board expenses when recruiting, and this 20,000 yuan should be refunded. Li San Group deducts the wages payable from Xu Pengfei every month according to the corresponding proportion, and converts the wages payable into pre-reward vouchers. The two sides agreed to pay wages after 20 years, which violated relevant laws and regulations. The charitable funds collected every month are deducted directly from Xu Pengfei's salary, and Xu Pengfei is voluntary. The two sides signed a labor contract, but there was no wage agreement in the contract. The contract is not in Xu Pengfei, but in Li San Group.

Li San Group recognized Xu Pengfei's entry time, entry time and departure time, and said that the two sides signed a written labor contract, but advocated that Xu Pengfei's average monthly salary was 2,520 yuan, and that Xu Pengfei resigned voluntarily for personal reasons. Regarding the insurance situation, Li San Group said that it will be implemented after the court's decision. After the trial, Li San Group did not submit implementation opinions.

Xu Pengfei made it clear that his claim was: 1, requiring Li San Group to pay 19389 yuan (from 20 13 to 20 16, Evidence 3); 2. Ask Li San Group to return 20 15 to 20 16 charitable funds in Xu Pengfei 142438+0 yuan; 3. Ask Morris Hotel to return the deposit of 20,000 yuan, because Li San Group is the administrative company of Morris Hotel and should bear joint and several liability for return, and this requirement has nothing to do with Sino-German companies and American companies; 4. Ask Li San Group to pay Xu Pengfei the economic compensation of 23,597 yuan (337 1 yuan× 7) for dissolving the labor contract; 5. Ask Li San Group to pay paid annual leave salary 10849 yuan [337 1 yuan /2 1.75 days × 7 (from 2009 to 20 16)×5 days× 200%].

Regarding Xu Pengfei's claim, Li San Group said: The company did not default on wages, did not force Xu Pengfei to pay charitable funds, and did not deduct them from wages; The advance payment deposit has nothing to do with our company and this case; Economic compensation should not be paid; From 2009 to 20 15, the paid annual leave salary has exceeded the arbitration limitation, and should be calculated at the average monthly salary of 2520 yuan; 20 16 paid annual leave is calculated according to working hours. Morris Hotel claims that a down payment of 20,000 yuan is not a labor dispute. China, Germany and the United States claim that Xu Pengfei's claim has nothing to do with our company.

It was also found out that Xu Pengfei applied to the Labor and Personnel Dispute Arbitration Committee of Chengyang District of Qingdao for arbitration on October 25th, 20 17, demanding that Li San Group, Morris Hotel and Sino-German-American Company pay wages of RMB 19389 and charitable funds of RMB 1842. 1 yuan. After examination, the Committee considered that the labor relations between the two parties were unclear. On February 6, 2065438, it made decision No.337 (20 17) on Qingcheng Old People's Final Word, and decided not to accept it. Xu Pengfei refused to accept this and filed a lawsuit.

The court of first instance held that both Xu Pengfei and Li San Group confirmed the existence of labor relations from 65438+February 2009 to July 20 1 6, and this case was a labor dispute. The focus of the dispute in this case is: 1. Xu Pengfei's monthly wage standard, whether Li San Group owes Xu Pengfei wages, and whether it should pay economic compensation to Xu Pengfei. Second, charitable funds and trade union membership fees. Three. Identification of the nature of Xu Pengfei deposit charged by Morris Hotel. Fourth, the issue of paid annual leave salary.

About focus one. Xu Pengfei claimed that the average monthly salary of 12 months before his resignation was 337 1 yuan, while Li San Group claimed that the average monthly salary of Xu Pengfei was 2520 yuan. In this regard, the court of first instance held: (1) the authenticity of the pre-awarded certificate. This voucher is stamped with the special financial seal of Li San Group. Li San Group said that the authenticity of the pre-grant certificate needs to be verified after the court, but it failed to submit verification opinions and should bear adverse consequences. In addition, Li San Group also expressed its opinions on the calculation of the pre-judgment amount during the trial, so the court of first instance confirmed the authenticity of the pre-judgment voucher. (2) About the nature of pre-dividend. 1. Both parties agree that they have signed a written labor contract, but the monthly salary is not stipulated in the labor contract, so it is impossible to determine whether the pre-reward voucher is part of the salary through the agreement in the labor contract. 2. The statement on the back of the pre-reward certificate clearly points out that the pre-reward "belongs to the extra reward and has nothing to do with the employee's salary, monthly salary, annual salary, overtime pay, various subsidies, various rewards and other remuneration and income". In the absence of evidence to prove that the pre-reward is salary, combined with the record in the column of "effective conditions of pre-reward", the court of first instance determined that the nature of pre-reward is conditional bonus. (3) Whether Li San Group should pay pre-dividends. 1. The payment terms of the pre-reward are stated in the pre-reward certificate. Combined with the identification of the duration of labor relations in Xu Pengfei Lisan Group, it can be seen that the pre-reward does not meet the payment conditions stated in the pre-reward certificate. Li San Group's failure to pay the upfront remuneration does not constitute arrears of wages in Xu Pengfei. Pre-reward should not be considered when calculating Xu Pengfei's average salary 12 months before his resignation. Calculated according to the details of Li Sanji's salary payment transaction submitted by Xu Pengfei. 2. According to Article 4 of the Social Insurance Law of People's Republic of China (PRC) and Article 72 of the Labor Law of People's Republic of China (PRC), the employer shall pay social insurance premiums for employees according to law. In this case, Xu Pengfei terminated the labor contract on the grounds that Li San Group failed to pay social insurance for it, and Li San Group failed to submit evidence to prove that it had paid social insurance for Xu Pengfei. According to the provisions of Item 3 of Paragraph 1 of Article 38 and Item 1 of Article 46 of People's Republic of China (PRC) Labor Contract Law, Xu Pengfei shall be paid economic compensation. According to Article 47 of People's Republic of China (PRC) Labor Contract Law, the amount of economic compensation is 3. As can be seen from the above analysis, the early bonus is attached with payment conditions such as working years. The termination of the labor contract in this case was initiated by Xu Pengfei. However, considering that the reason for the termination was that Li San Group failed to pay social insurance for Xu Pengfei according to law, and Li San Group's behavior violated relevant laws and regulations, Xu Pengfei terminated the labor contract accordingly, and the early bonus should be paid to Xu Pengfei by Li San Group. Considering Xu Pengfei's working years in Li San Group, the court of first instance ruled that Li San Group should pay 6,788 yuan before dividends. It should be noted that the amount of bonus paid to Xu Pengfei by Li Sanji Group at the discretion of the court of first instance was included in Xu Pengfei's claim for Li Sanji Group to pay salary of 19389 yuan, which means that it did not exceed Xu Pengfei's claim.

About focus two. The issue of charitable funds and union dues does not belong to the scope of labor dispute settlement. Therefore, the court of first instance did not support Xu Pengfei's claim that Li San Group should return 20 15 to 20 16 Xu Pengfei Charity Fund 1842438+0 yuan.

About focus three. Xu Pengfei asked Morris Hotel to refund the advance payment of 20,000 yuan. This request does not belong to the scope of accepting labor dispute cases and should not be handled in this case. Xu Pengfei can use evidence to stand alone.

About focus four. Li San Group did not submit any evidence to prove that Xu Pengfei arranged paid vacation or paid his annual paid vacation salary during his tenure, and should bear the legal consequences of proof. However, due to the fact that paid annual leave salary belongs to a kind of welfare treatment enjoyed by workers according to law, workers' claim for rights from employers should be bound by the limitation of arbitration. Xu Pengfei applied for arbitration on 20 17. According to Article 27 of the Law of People's Republic of China (PRC) on Mediation and Arbitration of Labor Disputes, Xu Pengfei's claim to ask Li San Group to pay paid annual leave salary on or before 20 15 has exceeded the arbitration period, and the court of first instance does not support it. Xu Pengfei joined Li San Group in 2009. According to Articles 2 and 3 of the Regulations on Paid Annual Leave for Employees and Articles 10, 11 and 12 of the Implementation Measures for Paid Annual Leave for Enterprise Employees, the number of days of annual leave converted from 20 16 in Xu Pengfei is two days, and Li San Group shall pay Xu Pengfei 50 16 paid annual leave salary.

In addition, the court of first instance rejected Xu Pengfei's claim to return the management fee of 675.07 yuan, because Xu Pengfei did not apply for arbitration.

To sum up, according to Articles 30, 38, 46 and 47 of the People's Republic of China (PRC) Labor Contract Law, Article 27 of the People's Republic of China (PRC) Labor Dispute Mediation and Arbitration Law, Articles 2 and 3 of the Regulations on Paid Annual Leave for Employees, and Articles 10, 11 and 11 of the Measures for the Implementation of Paid Annual Leave for Enterprise Employees, 2, Qingdao Lisan Group Co., Ltd. 3. Qingdao Lisan Group Co., Ltd. shall pay Xu Pengfei 20 16 paid annual leave salary of 52 1.07 yuan within ten days after the judgment takes effect; Four, reject Xu Pengfei's other claims. If the obligation to pay money is not fulfilled within the period specified in the judgment, the interest on the debt during the delayed performance shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of People's Republic of China (PRC). The case acceptance fee 10 yuan shall be borne by Qingdao Lisan Group Co., Ltd. ..

During the second trial in our hospital, Li San Group submitted evidence 1. Some regulations about the company's pre-rewarding employees and the minutes of the study meeting, which prove that the pre-rewarding is an extra reward, which is obtained by employees and extra income given by the company, and has nothing to do with employees' salary, monthly salary, annual salary, overtime pay, various subsidies and various rewards. This reward is only valid for those who faithfully perform the pre-reward conditions of the labor contract. If the rewarded person violates the labor contract, agreement, commitment, leaving his job halfway and other dishonest behaviors, the pre-reward is invalid. Xu Pengfei has studied and mastered this law. Submit evidence 2. Staff turnover management measures and study meeting minutes, which prove that Xu Pengfei learned and mastered the Staff Turnover Management Measures. Article 4.4 of the Measures for the Administration of Employee Resignation stipulates that "an employee who fails to go through the examination and approval procedures for leave, is absent from work for more than 7 days in a row, fails to go through the resignation procedures, and refuses to make corrections after persuasion and education, is regarded as absenteeism without reason"; Article 5.3 stipulates that "the laborer leaves his job without reason to terminate the labor relationship according to Article 39 of the Labor Contract Law". Three proofs and three explanations were submitted to prove that Xu Pengfei was absent from work for no reason, and the leaders of his department and the human resources department repeatedly asked him to pay insurance during his employment, but he refused to pay it. Submit evidence four. 1. Notice of Dissolving the Employee's Labor Contract and Notice of Dissolving the Labor Relationship with Xu Pengfei, which prove that Lisan Group dissolved the labor contract relationship with Xu Pengfei on August 20th, 20 16. The reason for the termination of labor relations is absenteeism for no reason and serious violation of factory rules and regulations. Refer to Articles 4.4 and 5.3 of the Administrative Measures for Resignation of Employees, and deal with it according to Article 39 of the Labor Contract Law.

After cross-examination, Xu Pengfei did not recognize the authenticity of the evidence 1, which did not conform to the three characteristics of evidence and did not belong to the new evidence in the sense of second instance. The rules and regulations formulated by Li San Group are invalid without Xu Pengfei's signature, which violates the mandatory provisions of the Labor Law. The cross-examination opinion of Evidence 2 is the same as that of Evidence 1. The real reason why Xu Pengfei left the company was overtime, low salary and failure to pay insurance. The Report on the Termination of Labor Contract was provided by Li San Group, stamped with the official seal and reported to the social security department, which was the real reason for Xu Pengfei's resignation. Evidence 3 has nothing to do with this case, and the explanation is made by Li San Group itself. Because Li San Group failed to pay insurance for Xu Pengfei, Xu Pengfei resigned and complained to the social security department of Chengyang District. The matter is being handled, and Li San Group has not been asked to pay insurance. The authenticity of evidence 4 is not recognized, and we have not received these notices. According to Li San Group's no objection to finding out the facts, Xu Pengfei terminated the labor contract with Li San Group on July 1, and Li San Group also issued a report on the termination of the labor contract.

Morris Hotel and Sino-German-American Company recognized the above evidence submitted by Li San Group.