In practice, some workers will work in some service industries, such as chefs in hotels or restaurants. If you are engaged in the profession of chef, what is the labor relationship when you work in a restaurant? Or is it a labor relationship? If you encounter a work dispute in this area, how can you protect your labor rights?
Today, I would like to share with you this case, hoping to warn your work! The company information and personal information in the case are hidden and replaced, not true information, for your reference only!
The court of first instance held that in the course of the court investigation, Li Mou1 admitted that he had served as the head chef of ABC Restaurant, and that he had posted the recruitment information of ABC Restaurant in the WeChat group. ABC Restaurant is operated by Company A. Cai Moumou went to the restaurant for an interview after contacting Li Moumou1 and started his work as a roast duck chef, during which he joined the WeChat group of the restaurant's back kitchen, did nucleic acid testing according to the requirements of epidemic prevention and control, and then fell and injured himself during the cleaning of the restaurant's kitchen.
Although Company A denied that Cai XX and Li XX1 had worked in the company, it did not provide evidence to prove it after the court's explanation, and should bear the corresponding adverse consequences.
Cai Moumou has been serving as a roast duck chef since December 5, 2021 under the management of the head chef Li Moumou1, and the work content belongs to the business scope of Company A, and the court determined that the two parties have established an employment relationship since December 5, 2021 in accordance with the law; For the period of the labor relationship, because Cai Moumou was injured during the work and did not return to work, but Company A did not notify him to dissolve or terminate the labor relationship, Cai's claim that the labor relationship existed between the two parties from December 5, 2021 to October 1, 2022 has a factual basis, and the court confirmed it in accordance with law.
Company A was dissatisfied with the first-instance judgment and appealed to the court of second instance.
The court of second instance held that Company A recognized that Li Moumou1 had served as its head chef before March 2022, that Li Moumou1 had posted the recruitment information of ABC Restaurant in the WeChat group, and that ABC Restaurant was operated by Company A, and that Cai Moumou had contacted Li Moumou1 to go to the restaurant for an interview and then started working, during which he joined the WeChat group of the restaurant's back kitchen and did nucleic acid testing in accordance with the requirements of epidemic prevention and control, so it can be determined that Cai Moumou did provide labor for Company A.
Article 7 of the Labor Contract Law of the People's Republic of China stipulates that an employer shall establish an employment relationship with an employee from the date of employment. Therefore, it can be presumed that Company A and Cai Moumou established an employment relationship.
If Company A wants to deny the employment relationship, it needs to adduce evidence to prove that its employment of Cai Moumou was based on other legal relationships such as labor contracts and contract contracts, but Company A did not adduce sufficient evidence in this regard, so the court of first instance found that it was not improper for the two parties to establish an employment relationship on December 5, 2021 based on the employment facts.
Because Cai Moumou was injured during work and did not return to work, Company A did not notify him to dissolve or terminate the employment relationship, so Cai's claim that there was an employment relationship between the two parties from December 5, 2021 to October 1, 2022 had a factual basis, and the court of second instance affirmed it.
The court of second instance ruled as follows, rejecting the appeal and upholding the original judgment.
Through this case, we can know that if you have a labor dispute with the company, we must collect reasonable and effective evidence in a timely manner, and we ordinary workers must have the awareness of labor risk prevention. Evidence collection recommends that you follow the following lines:
First, if the conditions are met, try to collect documentary evidence. For example, pay slips, copies of notices issued by the company, etc.
Second, in the absence of documentary evidence, some electronic evidence may also be collected. Such as email, WeChat chat history, recording, etc.
Thirdly, in the process of gambling with the company, you can mail your personal written opinion in writing to the company's legal representative. This written opinion must be written on a legal basis, so that the sub-operation can be more effective.
No matter what kind of company we workers work for, it is possible to be laid off or laid off by the company. It is of great significance for us to learn more about labor rights protection skills in our own careers.
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