Do you know those pits in labor arbitration? Pure dry goods pit avoidance guide, get on the bus!

When you are dismissed, the employer uses you unprepared, distorts and fabricates facts, and subconsciously makes you feel unprepared, afraid and angry, and falls into the trap that the other party has already set.

Many workers will face the following two problems when they are dismissed for the first time in their lives:

(1) I don't know the labor arbitration process, and I don't know who to look for and how to prepare.

(2) I don't know the labor law and how to protect my rights.

Confucius said, "If a worker wants to do a good job, he must sharpen his tools first." Before applying for labor arbitration, we should first understand the legal relationship and key points, so as to make a high-level judgment easily.

What should labor arbitration do?

In order to be easy to understand, the author divides the whole process of labor arbitration into four stages:

0 1, understanding the case stage:

Understand the event from the perspective of the overall situation (God's perspective), quickly find the legal basis, and sort out the arbitration claims.

This period of time is the most confusing stage for workers. On the one hand, I don't fully understand my own situation, on the other hand, I don't know how many chances I will have in labor arbitration. Let's break it down in detail:

(1) Get to know the truth as soon as possible.

If you have just been verbally dismissed by the employer and the employer asks you to write something or sign any documents, the first reaction is to calm down and fully understand the truth from God's point of view as soon as possible! Because what you know at present, or what your employer told you, may be only part of it, or even wrong, so you must know the facts before you can proceed to the next step!

(2) Don't sign any documents of the employer, and don't promise any problems to the employer.

In the case of dismissal or consensus, the employer used the unequal information to trick you into signing some documents. If you had made a stroke of the pen, you wouldn't have won the labor arbitration. Play Tai Chi with the employer first, you need to give some time to think about it first.

In most cases, HR chats with workers alone. Pay special attention at this time. HR will probably record it and frame you for the purpose of reconciliation! Take advantage of the fact that workers know nothing and collect as much evidence as possible that is beneficial to the company!

(3) Analyze the facts and find the optimal solution.

Through the facts we have at present, we can quickly make the following judgments:

A. is it illegal to dissolve the company?

Generally speaking, there are three ways for the employer and the employee to terminate the contract: both parties reach a consensus to terminate the contract, either party unilaterally terminates the contract, and the employer illegally terminates the contract.

If the violation is lifted, the employer needs to pay compensation (2N).

If the employer dissolves unilaterally, or both parties reach an agreement through consultation, the employer needs to pay economic compensation (N), which may involve payment in lieu of notice. In short, it is n or N+ 1 in this case.

You don't have to think so much, you just need to judge whether the employer has illegally terminated it.

B. Does the employer have the ability to pay quickly?

If the employer intends to reconcile with the workers, it basically comes with the purpose of "pricing". Generally, there are three situations:

The fact is 2N, which is intended to be reconciled by n or N+ 1.

The fact is that N+ 1 intends to settle with the compensation plan drawn up by the employer.

The fact is N+ 1, and the employer intends to take a step back and settle on the grounds that the workers made mistakes.

I want to tell you that at this time, instead of analyzing three situations, we should consider two things first:

Can the employer pay quickly after the settlement?

How sure are you that you can win all the claims in labor arbitration?

In other words, resorting to labor arbitration is a last resort. When the employer does not intend to pay the corresponding compensation, or the employer has no sincerity at all and promises with a blank check, you can only go through legal procedures at this time.

C. You can get money without applying for labor arbitration.

Labor arbitration is not the only solution. However, whether labor arbitration can be avoided depends on its own case. The following are two ways to avoid labor arbitration, which is faster than labor arbitration:

Labor inspection brigade: it is suitable for cases where there is only the fact of unpaid wages or no insurance payment. It is not too complicated and clear at a glance.

Application for payment order: it is applicable to the case that both parties reach a written agreement, but the employer refuses to perform it.

In fact, at this time, you probably already know the ins and outs of the case. If you make up your mind to go to labor arbitration, you can start taking evidence quietly. For example, conversations with employers, time sheets, WeChat punch records, pay slips and so on. Don't play hardball, and you don't have to fight with the employer. It will be easier to obtain evidence.

Summary: When a worker is dismissed, he will not sign any documents with the employer at first, so as to quickly know the truth of the incident. Secondly, he will analyze it according to the events. If it's best to settle, if he has to go through the labor arbitration procedure, then listen carefully!

02. Arbitration application and evidence preparation stage:

This is the stage where you spend the most time and energy. Need to consult relevant professionals and go to various places to collect evidence.

(1) Can I apply for labor arbitration?

Once a labor dispute occurs, it is necessary to "arbitrate first and then sue". Generally, the application for labor arbitration will be accepted, but sometimes the labor arbitration commission will reject the request of the laborer. The reasons for refusal are mainly divided into two aspects:

A. The place of labor arbitration is wrong: this place is out of control.

The application for labor arbitration needs to be filed in the labor arbitration committee under the jurisdiction of the employer. If rejected, it means that the local jurisdiction where you apply for labor arbitration is inconsistent with your case jurisdiction.

If the registered capital of the employer exceeds a certain amount, the local labor arbitration commission has no jurisdiction and can only apply to the labor arbitration commission at the next higher level.

B the content of applying for labor arbitration is beyond the scope of labor arbitration: some creditor's rights cannot be managed.

There are claims beyond the scope of labor arbitration in the labor arbitration request, which leads to rejection. For example: claims for provident fund, or disputes over equity and options.

Note that when the labor arbitration commission rejects your request, it must ask clearly what the reason is and whether it can apply for labor arbitration again after revision. For example, two of the five requests cannot be used for labor arbitration. You can delete these two inconsistent requests and apply again. Don't give up labor arbitration easily and go directly to the first instance. Labor arbitration is equivalent to giving workers another chance to appeal!

(2) Seek professional advice.

The "professionals" mentioned here do not necessarily refer to lawyers.

There are three main reasons for seeking a lawyer, even for paid consultation:

Lawyers are not specialized in handling labor disputes;

Due to the impact of the epidemic, many companies will lay off employees, and the cases of labor disputes are the hottest. Many lawyers think they have studied labor law and labor contract law. Lawyers who used to specialize in divorce and real estate disputes have now turned to labor disputes and made crazy money on the cusp.

Even if the classification of labor disputes in legal cases is relatively simple, it has not been done. It is one thing to pay attention to legal provisions, and judicial practice is another.

In order to accept the case, the lawyer deliberately made the result very high, which made you happy;

Some lawyers will do anything for money. If you consult, he will judge whether you really know the law. If you don't know or have a little knowledge, based on the principle of "experts earn amateurs", this case will be described as extremely complicated. You let him do it, and the result is infinitely beautiful. The purpose is to sign the bill.

Are you familiar with it? Is it like buying a house and wanting to decorate it?

Some unscrupulous lawyers even talk about cases that they can't win at all. When the court really opens, he will defect in public and advise you to mediate, but the lawyer's fee can't be less.

The policy is not grounded;

Some clauses in China's "Labor Law" and "Labor Contract Law" are not very clear, which leads to different understandings of policies in various places. For example, there are many differences about whether the dispatched workers can sign open-ended labor contracts, but they are all regulated by the Labor Contract Law, so some places support it, while others oppose it.

If you have relatives and friends who are lawyers, but not where the case is located, their suggestions may not be appropriate.

If labor disputes are involved, local HR and arbitrators are more professional than lawyers who have not specialized in labor disputes. If you want to consult a lawyer for fees, you should find a lawyer who specializes in handling labor disputes, and please be sure to understand the case and read the law.

(3) Preparing relevant materials and evidence

The front is enough. We need to prepare the application materials. First sort out the arbitration claim, then find the evidence, and finally fill in the evidence list.

A. Relevant materials for preparing to apply for labor arbitration

Sort out the content and amount you want to claim through the whole case and submit a written application.

Apply for arbitration: the labor arbitration commission provides a sample format, and you only need to fill in the contents.

The main contents of the arbitration application include:

Information of applicant and respondent: just fill in item by item. The relevant information of the applicant is on the account card.

Arbitration request: itemize the legal rights claimed (such as wages, economic compensation, labor relations confirmation, etc.). ), and the time period involved in the request must indicate the start and end dates.

Factual reasons: concise statement, fill in the basic information of the workers working in the employer, and the disputes that have occurred.

The author tells you that if you are not a professional and have not hired a lawyer, you can write more about the amount involved. For example, if it is 70,000 after calculation, you can write 80,000, according to 80,000. In fact, the amount you proposed does not count, and neither does the employer. The labor arbitration commission will make an accounting based on the evidence and give the correct figures. You don't have to be afraid of this. how much is it?

The reason why you are asked to write more is that on the one hand, you are afraid that you will really underestimate. In the case that the employer cannot provide evidence, the arbitrator is likely to follow your figures directly; On the other hand, you can bluff and give the employer an illusion that the figures you put forward are reasonable and have evidence, which is equivalent to creating trouble for the other party.

Copy of personal ID card.

Household card: that is, the applicant's business information has different names in different places, and some places need to go to designated places to open it.

Due to different requirements in different places, some places need to submit labor contracts, social security certificates and other related materials at the application stage, so everyone should ask clearly in advance.

B. Prepare relevant evidence

After accepting a case, the labor arbitration commission needs to prepare evidence. According to the experience, the author divides the evidence into three categories, which is convenient for everyone to understand:

Proof of labor relations: labor contract, social security certificate, salary flow, attendance sheet, work card, work clothes, etc.

We can see that this kind of evidence can directly prove the existence of labor relations with the employer, and most of them are originals.

The core of labor arbitration.

Notice of termination of labor contract; If you ask for compensation, you need to provide relevant evidence to prove the illegal termination; If you claim economic compensation, you need to provide relevant evidence.

Other categories: (if any)

Relevant evidence for applying for overtime pay; Relevant evidence advocating paid annual leave; Relevant evidence advocating double wage difference; Relevant evidence claiming that wages are not paid in full and on time, etc.

In addition, if there is electronic evidence such as audio-visual materials, it needs to be burned into a CD. If witnesses are needed to testify, they must apply to the arbitration tribunal in advance.

C. Fill in the evidence list

When all the evidence is ready, you need to fill in the evidence list before the trial. The list of evidence is very important. It is not only the index of evidence, but also the key to cross-examination and debate. I suggest you keep an extra list of evidence.

Three components of the evidence list:

Evidence number:

The numbers listed in the evidence list should correspond to the evidence one by one, which is convenient for the staff to find and for the arbitrator to sort out the case later.

Name of evidence:

Name of the evidence. For example, salary flow, WeChat attendance, dismissal notice, etc.

Evidence content:

That is, the relevant contents proved by the evidence indicate whether your evidence is related to the arbitration request, and it is also the focus of cross-examination and debate between the two sides.

For example:

Certificate of dissolution of labor relations, which proves the existence of labor relations between both parties and the reasons for dissolution.

Attendance record, proving working hours and overtime hours.

If you advocate illegal termination, the content of the evidence will definitely explain what evidence can prove illegal termination; The other party will cross-examine the evidence you present. When arguing, a second explanation will be made according to the cross-examination of the other party. After that, the arbitrator will check whether the evidence provided by you is in accordance with the list of evidence. Therefore, the list of evidence is very important!

Summary: At this stage, workers need to make clear and reasonable claims, prepare sufficient evidence and know the case like the back of their hands. If the laborer has hired a lawyer, don't blindly rely on it, but also judge for yourself.

03, the court stage:

The hearing is under the auspices of the arbitrator, both parties present their own evidence for cross-examination, then debate and finally sign. The whole process is not as complicated as expected.

Most cases are summary procedures, that is, an arbitrator and a recorder (called a clerk). It is rare to appoint three arbitrators when the case is complicated.

(1) Workers should pay attention to:

A. Preparation of evidence

All the evidence submitted is a copy. After cross-examination by both parties, the arbitrator will bring it back for investigation. But that doesn't mean not to prepare the original, but to prepare another original for the arbitrator to identify the authenticity in court.

Prepare two copies of all evidence, one for the arbitrator and one for the respondent. Keep the other copy in your own hands, so that you can read it directly in the cross-examination session. If you go to court in the future, you don't have to prepare again.

Prepare an additional evidence list, and all the evidence should be sorted according to the evidence list. Because it is a copy, you can draw some key points on it or mark it with language. Each piece of evidence should be numbered so that it can be rearranged quickly according to the number in case of confusion.

B. Observance of court discipline

During the trial, the arbitrator can only speak when you are asked to speak, and you can't interrupt at will. When you want to speak, you should signal to the arbitrator first.

The other party framed and smeared the facts, which made you angry. Don't argue with each other, don't make a scene.

For example, the other party says you: "Arguing irrationally, there is no evidence at all, shameless!"

Ignore him at this time. If the other party uses tough words, the arbitrator will warn the other party that you don't need to do so at all.

Audio and video recording is not allowed during the trial. Better turn off the ringtone!

C. Make up your mind and don't be afraid

Suggest that you should not be afraid, and don't be weak inside. In fact, labor arbitration is a simulation exercise before the trial. Everything is ready. Follow the arbitrator's process step by step. Strong-willed, say whatever you want.

D. concise and accurate language

The clerk's duty is to record the words of both sides, but not every sentence, only the sentences he thinks are important and summarize them in a very refined way. If you say a bunch of irrelevant or irrelevant words, the clerk will not record them and will have a bad impression. Therefore, language expression should be as accurate and concise as possible and to the point.

(2) Labor arbitration court procedure

The author listed several main points in the trial, which are slightly different in each region, but all are similar:

A the arbitrator shall read out the discipline and the arbitration request of the applicant.

If one party fails to appear in court for more than half an hour, the applicant withdraws the application and the respondent is absent from the trial. Under normal circumstances, employers will not do this.

The arbitrator verifies the identity of both parties, reads out the trial discipline and asks the applicant whether to apply for the withdrawal of the arbitrator.

The arbitrator reads out the applicant's arbitration request, which is very important for the workers. The arbitration request is the arbitration request in the arbitration application. If you want to change it, you can change it before the Labor Arbitration Commission issues a notice of hearing.

If it is changed a few days before the court session, I suggest you call the labor arbitration commission first and tell them that they need to change the arbitration request. It may not be implemented at that time, but the arbitrator will definitely ask you whether you want to amend it at the hearing. At the same time, the other party will also put forward a defense period of 10 days. Once the other party raises a defense, the trial will be postponed

If you don't say hello in advance, the arbitrator will probably reject your request for change.

B. Both parties made brief statements on the case.

Simply describe the case clearly, without knowledge.

C. Cross-examination (focus, take notes carefully)

Cross-examination is an exchange of evidence prepared by both parties in advance. The arbitrator will ask one question after another, and the clerk will record them one by one.

Arbitrators generally ask employers to conduct cross-examination first, with the purpose of letting applicants learn how to cross-examine and giving them a time to think.

Record the main points of the other party's cross-examination

The other party will indicate whether he is "approved", "partially approved", "completely rejected" or something else according to the evidence you provide. At this time, you should record what he doesn't approve of.

For example:

The first evidence is the salary slip, and the contents you want to prove are working hours and overtime hours. The employer will recognize the authenticity of the evidence, but will not recognize the content of the certificate.

The second evidence is the labor contract, and the content you want to prove is to confirm the labor relationship between the two parties. The employer will recognize the authenticity and content of the evidence.

The third evidence is the WeChat dialogue. What you have to prove is that the employer has admitted the fact of someone. The employer will not admit the authenticity and content of the evidence.

The fourth evidence is the form of subsidies. What you have to prove is that the employer has not paid overtime. The employer will recognize the authenticity of the evidence and prove that the content is irrelevant to the case.

Therefore, it is very important to prepare a list of evidence. The other party will basically confirm your evidence list one by one. At this time, it can be recorded on the list of evidence to facilitate the subsequent debate.

Record the evidence provided by the other party.

Because the cross-examination is conducted at the same time, when looking at the evidence provided by the other party, we should also make records to see what evidence the other party has and whether there are loopholes. I guess there's some evidence you haven't seen.

Laborers can say "I don't know" during cross-examination.

Don't be so sincere when you cross-examine each other. This is my advice to everyone.

Don't say "yes" to the evidence you haven't seen, even if you think it is true. Once approved, it means that you admit the authenticity and content of this evidence. At this time, you can say to the arbitrator, "I haven't seen this thing, and I doubt its authenticity." In fact, this is a disguised form of disapproval, but you are not lying.

Some evidence fabricated by the employer, such as absenteeism notice, annual leave notice, attendance, etc. Employers are easy to forge. For these, you can boldly say: "the authenticity is not recognized, and you have not sent me a notice of absenteeism!" " Or: "The authenticity of attendance is not recognized, and the employer has modified the attendance record, which is inconsistent with what I provided!"

For some ambiguous evidence provided by the employer, there is no signature or official seal, and the evidence is insufficient. It can be said: "These evidences have nothing to do with this case!"

Don't be soft when the employer provides false certificates!

Like the attendance just mentioned, generally they only dare to forge it, but dare not imitate the handwriting and sign it. This is not a false certificate. At most, it is "out of thin air".

When you find that the evidence provided by the employer imitates your personal handwriting, you should firmly express the seriousness of the incident to the arbitrator and insist on handwriting identification! Once the other party is identified as imitating handwriting, the employer will face severe punishment! Usually employers are afraid to provide such evidence, because they are well aware of the consequences of doing so, and even the delay will be recognized.

We also don't want to provide evidence to imitate the handwriting of the leader, which is not only humiliating but also causing trouble.

Conclusion: Cross-examination must be patient and meticulous, seize the loopholes in the evidence provided by the other party, and also record the cross-examination of the other party completely to prepare for the next stage of debate.

D. debate

Many small partners have misunderstandings about this link. The purpose of the debate is only to explain the questions raised by the other side, not to have substantive free exchanges between the two sides.

For example, if the other party doesn't agree with your third and fourth evidences, then you need to see what explanation you have for these two evidences. If not, there is no need to explain. If you have, you don't have to argue.

In fact, you are explaining to the arbitrator, and then the arbitrator will make a judgment based on conversation record, so this link is also very important, which may affect the arbitrator's judgment on the whole case.

There are too many details of cross-examination and debate to enumerate here. I can only scratch the surface first, and later I will publish a separate article to explain them.

E. whether to accept mediation

After all the above links are completed, the arbitrator will ask the applicant whether to accept mediation, and if not, wait for the judgment. If accepted, it will enter the mediation stage.

If you think you have a good chance of winning, you are sure, or you don't want to mediate, you can choose not to mediate. If you think the employer is sincere, you can also choose mediation.

If it is mediation, the arbitration tribunal will make an arbitration conciliation statement, which will be enforceable after judicial confirmation. If the employer fails to perform, it may directly apply for compulsory execution. You don't have to worry about the legal effect of mediation.

There will be a special explanation on mediation in the future, and the technical content is still very high, such as how to ask for more, or how to improve the quotation and so on.

F. Sign the dialogue record

This is the last step of the trial. The clerk will show you conversation record and sign if there is no objection. At this time, we should read the clerk's conversation record carefully. If there are any shortcomings, you can supplement them. If there are mistakes, we can correct them, but it is not impossible to correct them. Once you sign it, it means that you agree with the above contents, and it cannot be changed at that time.

04, the ruling stage:

Choose whether to appeal according to the arbitration result. If the applicant refuses to accept the arbitration award, he may apply to the court for first instance within 15 days. If the applicant does not appeal, he shall perform his obligations according to the ruling. If the respondent fails to perform on time, the applicant may apply to the court for compulsory execution.

Finally, add:

(1) Before the trial, the labor arbitration committee may ask you whether to mediate. You should remember that mediation is not 45 days, which is one of the reasons why many small partners have been engaged in labor arbitration for one and a half years.

(2) At present, employers like to play "verbal dismissal". Without written notice, even SMS notification will not be recognized. At this time, either find the employer to notify in writing to terminate the contract or continue to work. Don't say foolishly that you won't go, so you can not go to work, otherwise the employer can legally dismiss you for absenteeism because you don't come to work for a while.