Nutshell
Mr Li entered into a labor contract with a logistic company on October 2013 as engineering director. Mr Li is frequently requested on duty on weekends. The logistic company decided not to renew the contract with Mr Li when the three-year contract coming to an end. Mr Li cannot understand this because he has been a hard-working employee and always work over time. But the company has the right to decide whether to renew the labor contract since it’s a two-way choice. Therefore Mi Li claimed for the overtime wage for all the weekends for three years, all together over 50000 yuan. The company defended that Mi Li was on shift on weekends, and they already paid allowance.
Mr Li raised labor arbitration when the company refused to pay him.
Issue
The issue of this case lays on Mr Li’s work on weekends shall be shift or overtime. Whether the company shall pay overtime wage?
The company thinks Mr Li is on shift for weekends and they paid allowance for that. Additionally, Mr Li claimed overtime wage for three year which is over the statute of limitation.
Mr Li defends he is working on his own job on weekends but not shift, the company shall pay overtime wage according to local law, and dispute on income subject to special limitation but not one-year.
Judgment
The arbitration ruled that Mr Li can prove he is working on weekends doing his regular job. The company cannot prove that Mr Li’s work is different during overtime and there is no specific shift and overtime regulation, therefore Mr Li’s claim is supported.
Comment by Lawyer Tang
This case is a dispute on overtime wage, involving three legal questions.
- Arbitration Time Limitation for Overtime Wage
According to art.27 of Law on Labor-dispute Mediation and Arbitration, the limitation period for application for arbitration of a labor dispute is one year, which shall be calculated from the date a party comes to know or is expected to know the infringement of its rights. Where, during the existence of the labor relations, a dispute arises over the default in payment of labor remuneration, application for arbitration by the worker concerned shall not be restricted by the limitation period for arbitration prescribed in the first paragraph. However, where the labor relations are terminated, such application for arbitration shall be submitted with one year from the date the labor relations are terminated. Therefore Mr Li’s claim for overtime payment is not subjected to the one-year limitation as long as Mr Li apply within one year after termination.
- Burden of Proof for Claiming Overtime Payment
Art 9 of The Supreme Court on Judicial Interpretation of Labor Dispute (3) provides that the employee shall provide the evidence of the fact that he work overtime when claiming overtime payment. When the employee prove that the employer is in charge of the overtime work evidence, the employer shall bear the adverse consequence. Therefore Mr Li shall prove he is actually working over time.
- Shift or Overtime?
The difference of shift and overtime work is not provided by law, and vague in practice.
Shift usually means the employer arrange staff in charge of security in the reason of calling, guard of entrance, fire proof, prevention of burglary, or to solve emergency, etc. And overtime working means extending the original work, according to the definition provided by Labor Contract Law that the employer arrange according to the need of operation after negotiate with labor unit and employee. Therefore the difference here is on original job and production or operation duty.
The employer shall clarify the shift regulation, if not, it is easily to bear adverse consequence. In this case, it is unreasonable to arrange a director on shift, and there is no clarification in regulation. Therefore the employer bear the unfavorable consequence.
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