@ Office workers, collecting and retaining these evidences is of great use at critical moments!
In reality, more and more workers begin to protect their rights and interests through legal channels. Litigation has become an important way to rationally resolve labor disputes.
However, from the data disclosed in many places, the weak ability of proof has become an important reason for workers to lose the case.
In order to improve the ability of proof, it is necessary to know what evidence needs to be provided in labor disputes and how to collect and retain it. Learn and understand together!
When there is a dispute over labor relations, it is necessary to collect retained evidence.
After a labor dispute between a worker and an employer, denying the existence of a labor relationship between the two parties is the most "desperate" move of the employer, because the absence of a labor relationship means that the worker cannot ask for wages, overtime pay, social insurance and work-related injury benefits. Therefore, proving the existence of labor relations plays a fundamental role in safeguarding workers’ rights.
The most intuitive proof of the existence of labor relations is the written labor contract. But in practice, some workers think that the labor contract is dispensable, as long as the unit pays wages on time, even if they sign the labor contract, they don’t ask for the contract text. There are also some employers who deliberately do not sign labor contracts with workers or provide written labor contracts because of their irregular employment or trying to evade corresponding responsibilities. In the absence of a written labor contract, in order to prove the existence of labor relations, workers can collect and keep the following evidence:
1, wage payment vouchers or records, pay the social insurance fee records. Such as payroll, social insurance records, etc.
2. The "work permit", "service certificate" and unified logo issued by the employer to the workers, including badge, employee card, access card and even meal card.
3. The employment records of the employer’s recruitment, recruitment "registration form" and "application form" filled out by the employee, as well as the job description, salary confirmation and post adjustment notice signed by the unit.
4. Attendance records. Such as punch record, overtime notice, etc.
5. Testimony of other workers of the employer.
6, mobile video, telephone recording, etc.
When retaining the above-mentioned evidence, we should try our best to keep the original, and we should not modify or smear the original, otherwise it will affect the probative force of the evidence.
When there is a dispute over overtime pay and unpaid annual leave wages, it is necessary to collect retained evidence.
According to the data, in recent years, in the labor disputes, besides confirming the labor relations, the demands of the workers mainly focus on claiming overtime pay, annual leave wages and so on. Then, what evidence should be collected to recover overtime pay and unpaid annual leave wages?
Article 9 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases stipulates that if a worker claims overtime, he shall bear the burden of proof for the existence of overtime facts. Article 6 of the Law on Mediation and Arbitration of Labor Disputes also stipulates that the principle of "whoever claims and gives evidence" should be applied to labor disputes, and cases of recourse for overtime pay should not be an exception.
The overtime evidence provided by the laborer can be attendance sheet, shift record and overtime notice; It can also be payslips, witness testimony, etc. In addition, the evidence of the fact that the laborer claims to work overtime is held by the employer, and the laborer should also provide evidence for this claim. When the laborer proves that the evidence of the fact of working overtime belongs to the management of the employer, the employer shall provide it; If the employer fails to provide it, it shall bear the adverse consequences.
When it comes to the evidence needed in the dispute over asking for the salary of annual leave, Article 2 of the Regulations on Paid Annual Leave for Employees stipulates that employees of government agencies, organizations, enterprises, institutions, private non-enterprise units, individual industrial and commercial households with employees and other units shall enjoy paid annual leave if they have worked continuously for more than one year. The unit shall ensure that employees enjoy annual leave. During the annual leave, employees enjoy the same salary as during the normal working period. In addition, Article 4 of the Measures for the Implementation of Paid Annual Leave for Enterprise Employees stipulates that the number of days of annual leave shall be determined according to the accumulated working hours of employees. When employees work in the same or different employers, and when they are regarded as working in accordance with laws, administrative regulations or the provisions of the State Council, they shall be counted as accumulated working hours. Therefore, "accumulated working hours" is very important for employees’ paid annual leave rights.
The number of accumulated working hours is directly related to the number of vacation days and the salary and reward of employees who have not taken vacations. Employees bear the burden of proof for the accumulated working hours they advocate, otherwise they will bear adverse consequences. These evidences generally include labor contracts, archival records, social security payment records, resignation certificates, salary payment records, personal income tax payment records, etc.
In addition, in this kind of dispute, some evidence is provided by the employer. If the employer cannot provide it, the laborer may win the case. These evidences include: the situation that the employer has arranged for the employee to take annual leave, and the fact that the employer has not arranged for the employee to take annual leave, but has obtained the written consent of the employee (in this case, the employer only pays the employee’s normal salary and does not need to pay three times the annual leave salary). If it refuses to provide, the employer shall bear the adverse consequences. If it is difficult for employees to submit proof materials, they may also apply to the people’s court for collection, and clear evidence clues should also be provided when applying.
Evidence that needs to be collected and retained due to disputes over the identification and treatment of work-related injuries.
Among many labor disputes, disputes arising from work-related injury identification and work-related injury treatment are undoubtedly the most helpless type of workers and their families. Although work-related injuries happen occasionally, they are caught off guard, and once they happen, they have a great impact on workers and their families. The existence of industrial injury insurance is to "ensure that employees who suffer from accidents or occupational diseases at work get medical treatment and economic compensation, promote industrial injury prevention and vocational rehabilitation, and disperse the industrial injury risks of employers". However, in reality, some workers can’t find employers to help them apply for work-related injuries after being injured, or they are denied by employers as work-related injuries, making it difficult to protect their rights.
How to obtain work-related injury identification after injury? This requires workers to pay attention to collecting and retaining the corresponding evidence.
These evidences mainly include two types, one is the evidence of labor relationship with the employer. This kind of evidence is the same as the first part of this paper, so I won’t repeat it here.
The second kind of evidence is evidence that can prove that the injury constitutes a work-related injury. Including:
1, during working hours and workplace due to work-related accidents, before and after working hours in the workplace to engage in preparatory or finishing work related to the relevant evidence of accidents.
2. In case of accidental injuries such as violence during working hours and workplace due to the performance of work duties, the certificate of the public security organ, the judgment of the court or other certificates shall be submitted.
3. When going out for work, if you are injured or have an accident and your whereabouts are unknown, submit a certificate from the public security organ or the relevant department.
4, on the way to work, injured by a motor vehicle accident, submitted to the public security traffic management department or the relevant departments to prove.
5. In case of sudden illness or death within 48 hours after being rescued, submit the rescue certificate of the medical institution, etc.
In fact, labor disputes are far more than the above categories, and it is difficult to list the required evidence one by one.
If workers want to get support in all kinds of disputes, they must pay attention to their own rights and interests in their daily work, pay attention to preserving all kinds of work-related materials and objects, and only when they need to defend their rights can they produce enough evidence.
(Workers Daily WeChat WeChat official account)
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