Shijiazhuang Intermediate People's Court of Hebei Province

civil judgment

(20 19) Ji 0 1 Minzhong 1 1952

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.2301,Unit 065438, Shenyang Gate Building, No.2 Xiangyang Road, Chang 'an District, Shijiazhuang.

Legal Representative: Li Qinglin, general manager.

Litigation record

The appellant Zhao Jin, the 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 (20 18) Ji 0 102 Minchu No.4360, and appealed to our court. After filing the case on 20 19, 10 and 14, our hospital formed a collegial panel 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 The fourth item of the civil judgment of the People's Court of Chang 'an District, Shijiazhuang City (20 18) Ji 0 102 was revoked, and the total compensation for the appellant's salary and unpaid salary was increased to 109375 yuan, and the flight training fee was 5,200 yuan and 2,400 yuan. 2. Maintain the first, second and third items of the civil judgment No.4360 of the People's Court of Chang 'an District, Shijiazhuang City (20 18) Ji 0 102 Republic of China; The legal costs of this case shall be borne by the appellee.

Yuan Nan Airlines replied that 1 rejected the appellant's appeal in the second instance according to law, which 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, and ordered the defendant and the third party to jointly pay the plaintiff's labor remuneration of 967 15.4 yuan, and overdue payment of labor remuneration compensation of 48,357.7 yuan; 2. Order the defendant and the third party to jointly pay double wages 105000 yuan for the non-renewed labor contract; 3. The defendant and the third party were ordered to jointly pay 65 173 yuan for overtime pay on statutory holidays and 32,586.5 yuan as compensation for overtime pay; 4. Order the defendant and the third party to jointly pay the compensation for violating the probation period. 34.800 yuan; 5. Order the defendant and the third party to jointly pay the plaintiff's annual flight training fee of 20 18200 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 35,000 yuan in economic compensation for the termination of the labor relationship.

The court of first instance found the fact that on June 8, 20 16, the plaintiff Zhao Jin applied for the pilot position of the defendant Yuannan Airlines. The application registration form shows that the plaintiff started to work in Hanxing General Aviation Co., Ltd. on 20 12, with the original salary of 20,000/month, the formal employment time of 2065,438+July 26, and the initial salary standard of 12000/ month. The preliminary examination opinion of the application registration form stated that "the pilot transfer fee is 360,000 yuan, which meets the recruitment conditions of our company and agrees to be hired immediately". On September 7th, 20 16, the plaintiff and the defendant signed a written labor contract. The contract period is from July 26th, 20 16 to July 25th, 20 17, and the probation period is from July 26th, 20 16 to June 26th, 2000, and the post is a pilot in the navigation department. (The probation period is 80% 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 pays180,000 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 30 working days after Party A pays the first training transfer 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 30 years (until Party B reaches the age of 70), and the service period does not conflict with the term of the labor contract. (2) After serving Party A for 30 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 30 years, and proposes to transfer or resign early due to personal reasons (including the loss of flight ability in the previous 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 30 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. ".2065438+On June 8, 2007, the original defendant and the defendant signed the Supplementary Agreement on 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, 20 16, Party B has a flight subsidy, with the subsidy standard of 12 hours per month and 200 yuan per hour. Payment method: the flight allowance of Party B before the departure date (2065438+April 20, 2007) 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 2065438+2007. The salaries of the plaintiff from August 20 16 to September 20 12000 were1kloc-0/5 yuan, 12556 yuan, 15000 yuan and 15000 yuan respectively. 17400 yuan, 17400 yuan, 17400 yuan, 17400 yuan, 17500 yuan, 15 100 yuan, the defendant. During this period, the defendant paid the plaintiff a transfer fee of 18000 yuan on September 4, 20 16, and paid the plaintiff a transfer fee of 189968 yuan on August 6, 20 17, but the plaintiff did not pay the second transfer fee of 18968. On March 5, 20 18, the plaintiff applied for labor arbitration to dissolve the labor relationship between the plaintiff and the defendant. The defendant paid him labor remuneration of 94,900 yuan, overdue payment of 47,450 yuan, double wage difference of105,000 yuan, overtime pay of 65 173 yuan on holidays, overdue payment of 32,586.5 yuan, salary of 38,400 yuan for violating probation period and economic compensation of 35,000 yuan for dissolving labor relations. 20 18, training fee 5200, paid social insurance. 18 in June, the labor and personnel dispute mediation and arbitration commission of Chang 'an District, Shijiazhuang City made an arbitration award (20 18)No. 104, ordering the defendant to pay the plaintiff labor remuneration for 20 17 years in February. 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, 2008, 2065438, 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 of Zhu Jin Lao Zhong Zi [20 14] 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 him invalid against his true meaning. According to the arbitration award, the plaintiff claimed that his living expenses were 2,000 yuan/month before June 2065,438+03, and paid at 3,000 yuan/month from March 2065,438+04 to April 22, 2065,438+04. Regarding the time limit for the plaintiff to work for the defendant, the plaintiff claimed that the defendant owed the plaintiff wages from June, 20 17, but the plaintiff worked until February, 20 18 because of 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 the dispute between the two parties occurred in mid-September, 20 17 because of the invalidity of the contract and the transfer fee, and also submitted. 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. Song, the plaintiff's application witness, claimed that the plaintiff also participated in the study of Kitty Hawk 500 on October 201KLOC-0/65438 10 and went to the Northeast for training. On February 20 18, 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 2065438+2007. 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 had been absent from work since mid-September, 20 16, and then the human resources department called him to work, but the plaintiff kept coming, but he didn't submit evidence or issue a certificate to the plaintiff to terminate the labor relationship. The plaintiff submitted the training fee invoice for October 20 18 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 5,200 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 20,000 yuan/month, which was quite different from the original salary level recorded in Zhu Jinlao Zhongzi [20 14] No.563 non-final arbitration award. The plaintiff fabricated important facts by fraudulent means, which led 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 8,000 yuan/month as the basic salary, and there were welfare rewards such as flight subsidies totaling 20,000 yuan/month. Although there is a big difference between 8,000 yuan/month and 20,000 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 the salary of 20 17 to 10, but the plaintiff continued to work until 20 18 due to the transfer fee. It was told that the plaintiff stopped working in mid-September, 2065438+2007 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, in combination with the transfer fee paid by the defendant to the plaintiff, the plaintiff did not pay the second sum of RMB 189968 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 on February 20 18, and the defendant accused the plaintiff of 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, we found that the defendant stopped paying the plaintiff's salary in October 20 17 10 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 in February 20 18. 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 20 17 to February 20 18 at 80% of the minimum wage, totaling 1.650 yuan× 80 %× 5 = 6 and 600 yuan. Regarding the wage arrears claimed by the plaintiff in February and February of 20 17 and 17, the salary table submitted by the defendant showed that the defendant paid 10645 yuan and 12857 yuan, which were lower than the salary 15000 yuan/month stated in the labor contract. The plaintiff's claim for compensation for overdue payment of labor remuneration is not supported by our court because the additional 50% 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 2065438+2008, 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 and the defendant is from July 26th, 20 16 to July 25th, 20 17, after the expiration, the plaintiff continues to work for the defendant, and the defendant pays the plaintiff monthly wages, which is 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 pays the plaintiff a special training fee (transfer fee) of 369,968 yuan, and the service period is 30 years, and the defendant pays the above money to the plaintiff in two installments. It should be considered that the two parties signed a long-term (30-year term) labor contract, so the plaintiff claims that the defendant pays the plaintiff compensation for violating the probation period, which is not supported by our court. The plaintiff did not submit evidence to prove the fact that he worked overtime on holidays, and the plaintiff adopted an irregular working hour system. At the same time, the plaintiff's salary structure includes night shift allowance and other items, so the plaintiff's claim for overtime pay is not supported by our court. Training fee, the plaintiff did not submit evidence to prove that the training was assigned by the defendant, and the two sides did not reach an agreement on the training, so the plaintiff claimed that the defendant should pay him a flight training fee of 5,200 yuan, which was not supported by our hospital. The plaintiff's application for social insurance is not within the scope of the people's court to accept labor dispute cases, and our court will not accept it. The plaintiff's claim for joint payment by a third party was rejected by the court because the evidence submitted by the plaintiff showed that the third party invested in Yuannan Airlines, but it showed that its salary and special training fees were paid by the defendant. On this basis, according to the provisions of Articles 19, 22, 38, 46, 47, 82, 83 and 85 of People's Republic of China (PRC) Labor Contract Law and Article 28 of Hebei Province Wage Payment Regulations, the judgment is as follows: 1. Zhao Jin, the plaintiff, and Nantong Airlines Co., Ltd., Hebei Yuan, the defendant, signed an agreement on 20 18. 2. The defendant Hebei Yuan Nantong Airlines Co., Ltd. paid the plaintiff Zhao Jin an economic compensation of 32,633 yuan for the termination of labor relations within 10 days from the effective date of this judgment; 3. The defendant Hebei Yuannan Nantong Airlines Co., Ltd. paid the unpaid salary and living expenses 13098 yuan to the plaintiff Zhao Jin within ten days from the effective date of this judgment; 4. Reject the plaintiff Zhao Jin's other claims. If the obligation to pay money is not fulfilled within the period specified in this 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 acceptance fee of this case, 10 yuan, was charged to 5 yuan by half, which was borne by the defendant Hebei yuannantong aviation co., ltd.

During the second trial in our court, the parties did not submit new evidence. We confirm the facts ascertained by the court of first instance.

The court held that

In our hospital's opinion, disputes occurred during the existence of labor relations between the two parties, which led to the inability to continue to perform the labor contract between the two parties. Neither party can provide exact evidence to prove the time when the appellant provided labor services. Therefore, there is nothing wrong with the appellant's claim that the appellee is in arrears with wages, and the original judgment does not support it. As for the training fee, there is no evidence to prove that the training was arranged by the appellee because of the dispute between the two parties, so it is not inappropriate for the original trial not to support it. The appellant's new claims in the second instance can be handled separately.

To sum up, Zhao Jin's appeal could not be established, and the first-instance judgment found that the facts were clear and the applicable law was correct. In accordance with the provisions of the first paragraph of Article 170 of the Civil Procedure Law of People's Republic of China (PRC), our judgment is as follows:

Judgement result

Reject the appeal and uphold the original judgment.

The acceptance fee for the second instance case 10.0 yuan shall be borne by the appellant Zhao Jin.

This is the final judgment.

Document tail

Presiding Judge Zhang Nan

Judge Lvliang.

Judge Wang Shufang.

20 19 years 1 1 month 14 days

Assistant Judge Xu Jieying

Staff Sun Yashan