A friend asked me in a private letter about the legal risks of forging a resume to join the company. Let me share a case with you.
Case Description: From 2065438 to March 2004, Cui Hua joined a company as the director of administration and human resources. According to the written labor contract signed by both parties, Cui Hua's monthly salary is 40,000 yuan, and the probation period is three months. After the expiration, it will be adjusted to 50,000 yuan. Before going to work, you need to submit a copy of the diploma and other certificates. If the information is forged, it will not be employed.
In the application materials, Cui Hua said that he graduated from South China Normal University and worked as CEO, secretary and human resources director in many large enterprises, and submitted graduation certificates, bachelor's degree certificates and other materials.
Two months later, the company accidentally discovered the above diploma, and the certificate of resignation turned out to be forged. On may 10, the company dissolved the labor contract between the two parties, and sent a notice of dissolution of the labor contract to Cui Hua, and both parties went through the handover procedures.
In addition to the termination of the labor contract by the company, Cui Hua was also administratively detained by the Public Security Bureau for using forged resignation certificates and academic credentials 15 days.
After being dismissed, Cui Hua applied for labor arbitration, demanding that the company pay him more than 80,000 yuan in salary and overtime from March to May in 1965, 438+2004, 40,000 yuan in compensation and 1 10,000 yuan in social security fees. The arbitration department considered that the labor relationship between the two parties had been dissolved and rejected Cui Hua's appeal.
In September, Cui Hua sued the court, claiming that the company failed to pay its wages and overtime pay in full, and asked the court to order the company to pay its wages and overtime pay from March to May, and pay compensation for the arrears of wages.
The company argued that Cui Hua forged his resignation certificate and academic credentials, and the labor contract signed by both parties was invalid according to law. Considering that Cui Hua did work in this company, he has paid him more than 40,000 yuan.
After trial, the court held that the letter of appointment signed by both parties stipulated that forged diplomas and other materials should not be used. The labor contract also stipulates that if Cui Hua concludes the contract by fraudulent means, the contract will be invalid and the company can terminate the contract. Cui Hua's education and work experience are important conditions for applying for the position of human resources director of the company, and Cui Hua's application for forged materials has constituted fraud. The letter of appointment and labor contract signed by both parties are invalid according to law.
Although Cui Hua applied for the position of Director of Human Resources, his important information was forged, and he actually did not have the qualification for this position. The salary he deserves during his tenure can refer to the monthly average of this city. Because the company has paid Cui Hua more than 40,000 yuan, far exceeding his due salary, the court refused to support Cui Hua's claim for salary and overtime pay.
Cui Hua's request for the company to pay unpaid wages compensation also lacked factual basis, and the court did not support it. The court ruled that the labor contract signed by Cui Hua by fraudulent means was invalid and rejected all the claims of Cui Hua.
Grey analysis In my opinion, this case has two focuses:
One of the focuses: Does Cui Hua's fake resume make the labor contract invalid? The second focus: When the labor contract is invalid, whether Cui Hua should get the labor remuneration and how to calculate the labor remuneration. What is invalid labor contract? Refers to the labor contract concluded between the employer and the employee, which cannot produce the legal consequences expected by the parties because it does not meet the statutory conditions. According to Article 26 of the Labor Contract Law, the following labor contracts are invalid or partially invalid.
First: by means of fraud, coercion or taking advantage of the danger of others, the other party is made to conclude or change the labor contract against its true meaning. Second, the employer exempts itself from legal responsibility and excludes the rights of workers. Third: violation of mandatory provisions of laws and administrative regulations. The situation mentioned in the first paragraph of this article belongs to the situation of signing or changing the labor contract against the true meaning. Specifically refers to the conclusion of a labor contract. When concluding a labor contract, both parties use fraud, coercion or take advantage of others' danger to make the other party conclude or change the labor contract against its true meaning.
What is fraud? Fraud refers to the situation in which one party to a labor contract deliberately informs the other party of false information or deliberately conceals real information, so that the other party makes a wrong expression of intention. For example, workers use false employment experience or academic qualifications to conclude labor contracts with employers.
According to the Labor Contract Law, the conclusion or modification of a labor contract shall be made by the employer and the employee on the basis of equal resources.
Labor contracts can only be concluded or changed through consultation. If one party enters into or changes a labor contract against the true meaning of the other party, then entering into or changing a labor contract violates the principle of equality, voluntariness and consensus in entering into a labor contract.
The subject of concluding a labor contract is limited by the expression of true will to a certain extent, so the labor contract will be invalid.
In this case, Cui Hua forged his resume, and the employer entered into a labor contract against his true meaning. Therefore, the labor contract is invalid.
If the labor contract is invalid, should Cui Hua get the labor remuneration and how to calculate it? The invalidity of a labor contract can be divided into complete invalidity and partial invalidity.
In the case of invalidity, the labor contract has no legal effect from the beginning. Its invalid labor contract has no legal effect by definition, is not protected by law, and cannot be continued to be performed. In the case of partial invalidity, the invalid part has no legal effect, and the rest is still valid. Part of an invalid labor contract has no legal effect from the beginning, while the rest still has legal effect and is protected according to law. If the labor contract is invalid, should the laborer pay the labor remuneration, and how?
According to Article 28 of the Labor Contract Law, if the labor contract is confirmed to be invalid and the laborer has paid the labor, the employer shall pay the labor remuneration to the laborer.
The amount of labor remuneration shall be determined with reference to the labor remuneration of the same or similar workers in the unit.
Therefore, in the case that the labor contract is invalid, the employer shall pay the laborer labor remuneration, and the amount of labor remuneration shall be determined with reference to the labor remuneration of the same or similar workers in the unit.
Therefore, in this case, the employer should refer to the average wage standard of human resources managers in the labor market to calculate Cui Hua's labor remuneration during his employment.
Finally, thank you for reading, and please pay attention to us to get more knowledge about labor law.