In daily life, work is an important way to make ends meet and realize personal value. However, some employers may not comply with labor laws and regulations and do not pay their employees. Especially in the restaurant industry, employees are often in a vulnerable position and are often helpless when it comes to wage issues. If the hotel is in arrears of wages, how can the workers protect their rights and interests? This article will give you some solutions and suggestions.
Netizen consultation:
What should I do if I don't get paid when I work in a restaurant?
Lawyer answers:
If the boss of the restaurant does not pay the salary, the worker can file a complaint with the labor inspection department or apply for labor arbitration. When both parties to the labor relationship dissolve or terminate the labor contract in accordance with the law, the employer shall pay the employee's wages in full at the time of dissolution or termination. The employer shall settle all remuneration and expenses on the day of resignation, and if the employer refuses to settle the payment, it is an illegal act. Here's how to deal with it:
1. The parties may negotiate with the employer, or ask the trade union or a third party to negotiate with the employer to reach a settlement agreement. It is an illegal act for an employer to default on the wages of an employee. In the event of a dispute over the arrears of wages, the employee should first request the employer for payment and take the initiative to communicate and negotiate with the employer. After the two parties reach an agreement, the employee can sign a settlement agreement with the employer.
2. In the event of a labor dispute, if the parties are unwilling to negotiate, fail to negotiate or fail to perform after reaching a settlement agreement, they may apply to the mediation organization for mediation. After a labor dispute arises, the employee may submit a request to the labor dispute mediation committee to preside over the mediation. The labor dispute mediation committee is generally composed of employee representatives, employer representatives and trade union representatives, which can assist both parties in resolving conflicts relatively neutrally, and is also conducive to reducing the burden of litigation between both parties. If the two parties reach an agreement, the labor dispute mediation committee can make a mediation agreement.
3. If the applicant is unwilling to mediate, fails to mediate, or fails to perform after reaching a mediation agreement, he or she may apply to the Labor Dispute Arbitration Commission for arbitration. The procedures for an employee to initiate labor arbitration are as follows:
1) Acceptance. 1. The parties shall submit the following materials to the Labor Dispute Arbitration Commission:
1) Application for arbitration: The application shall clearly state the name, occupation, address, work unit of the complainant, the name and address of the enterprise, and the name and position of the legal representative; the circumstances of the respondent; Grievance request and factual basis; Qualifications and authority of the delegator; The date of the complaint, etc.
2) Proof of identity, including the identity information of the applicant and the respondent.
3) Proof of labor relationship, labor contract, certificate of dissolution or termination of labor contract, certificate of payment of wages, etc.
4) Confirmation of service address to facilitate the receipt of materials issued by arbitration institutions.
5) If there is a person who is entrusted, it is necessary to sign and submit the "Power of Attorney" in person, indicating the matters of entrustment, and submit a copy of the ID card of the entrusted person. If the client's ** person is a practicing lawyer sent by a law firm, a copy of the practicing lawyer's ID should be provided: if the client's ** person is a citizen, the ** agreement signed with the client without a fee should be provided, as well as the legal information on the relationship between the ** and the client.
6) The respondent's industrial and commercial registration information, such as a copy of the business license, etc.
7) The List of Evidence to be Submitted shall be made in duplicate.
2. The labor dispute arbitration commission shall conduct a formal examination of the parties' application for filing a case and decide whether to file the case. The labor dispute arbitration commission shall, within seven days of receiving the complaint, decide whether to accept or file the complaint.
1) If the conditions for acceptance are not met, a notice of inadmissibility shall be issued to the complainant;
2) If the conditions for acceptance are met, fill in the Case Filing Approval Form and submit it to the Arbitration Commission for approval.
2) To hear a labor dispute case, the arbitral tribunal shall send a written notice of the members of the arbitral tribunal, the time and place of the arbitration tribunal to the parties four days before the hearing. After receiving the ** notice, the parties shall attend the arbitral hearing on time. If the complainant refuses to appear in court without justifiable reasons, or withdraws from the hearing without the consent of the arbitral tribunal during the first period, the complainant shall be dismissed and the respondent shall be rendered in absentia.
1. The members of the arbitral tribunal shall review the complaint and defense materials, investigate and collect evidence.
2. In case of problems that require inspection or appraisal, it shall be handed over to the statutory department or entrusted by the relevant department for inspection or appraisal. and fill in the approval form for suspension of hearing, which shall be examined and approved by the person in charge of the office of the arbitration commission.
3. The arbitral tribunal shall serve the written notice on the parties four days in advance.
4. The Arbitral Tribunal shall hear the case in accordance with the Hearing Rules
c) Processing. 1. The Labor Dispute Arbitration Commission shall implement the principle of prior mediation in handling labor disputes. If the parties are willing to conciliate, the arbitral tribunal shall, on the basis of ascertaining the facts and distinguishing responsibilities, promote the parties to reach an agreement voluntarily. The content of the agreement must not violate the provisions of laws, rules and regulations. If an agreement is reached through mediation, the arbitral tribunal shall prepare a mediation statement. Once the mediation agreement is served, it will have legal effect.
2. If the mediation fails to reach an agreement or the parties repent before the mediation statement is served, the arbitral tribunal shall conduct the arbitration in a timely manner.
3. If a party is dissatisfied with the arbitral award, it may file a lawsuit with the people's court within 15 days from the date of receipt of the award; If the lawsuit is not filed within the time limit, the ruling shall take legal effect.
4. The parties shall perform the effective mediation agreement or award within the prescribed time limit. If one party fails to perform within the time limit, the other party may apply to the people's court for compulsory enforcement.
4) Service: 1. The service of the arbitration document must have a receipt of service, and the recipient shall indicate the date of receipt, signature or seal on the receipt of service.
2. After the arbitration documents are served, the arbitral tribunal shall fill in the case closure approval form and conclude the case after being signed by the person in charge of the office of the arbitration commission.
4. If a person is dissatisfied with the arbitral award, he or she may file a lawsuit with the people's court. The party making the arbitration claim shall file a lawsuit with the people's court within 15 days from the date of receipt of the arbitral award. The arbitral award shall normally be rendered within 60 days of receipt of the application for arbitration. If there is no objection to the arbitral award, the parties must perform it. Labor disputes must first be submitted to the labor arbitration commission, and only after the arbitration is not satisfied can they be sued to the court.
The specific process is as follows:
1) The parties apply to the people's court to file a case.
1. Required materials.
1) Civil complaint and its copy. The complaint shall clearly state the cause of action, the basic identity information of the parties, the basic facts and reasons, and so forth.
2) Labor arbitration and its copy. That is, the document that states the results of the labor arbitration of the parties.
3) Relevant evidentiary materials and corresponding copies: such as evidence proving the existence of an employment relationship between the employee and the employer, records of the employee's attendance, and relevant evidence of the employer's arrears of wages.
2. The people's court shall conduct a formal examination of the parties' application for case filing. The people's court shall conduct a formal review of a party's application to file a case. Where the following requirements for case filing are met, the people's court shall file the case:
1) The plaintiff is a citizen, legal person or other organization that has a direct interest in the case;
2) there is a clear defendant;
3) There are specific litigation claims, facts and reasons;
4) It is within the scope of civil litigation accepted by the people's court and the jurisdiction of the people's court receiving the lawsuit. Where the requirements for initiating a lawsuit are not met, a written ruling shall be made within 7 days and will not be accepted.
2) Pre-trial preparations.
1. The people's court shall promptly serve the relevant litigation materials. After the people's court files a case, it shall promptly deliver the relevant litigation materials to the defendant. The people's court shall send a copy of the complaint to the defendant within 5 days of filing the case, and the defendant shall submit a reply within 15 days of receiving it.
2. The people's court shall conduct mediation in cases where the mediation system can be applied. Where an agreement is reached through mediation, the people's court shall draft a mediation document. The mediation document shall clearly state the litigation demands, the facts of the case, and the mediation results. The mediation document is to be signed by the adjudicators and clerks, affixed with the seal of the people's court, and served on both parties.
3) The people's court conducts a trial and makes a judgment.
1. People's courts hearing civil cases shall notify the parties and other litigation participants three days in advance. Where the trial is open, the names of the parties, the cause of action, and the time and place shall be announced.
2. Cases tried by people's courts applying the ordinary procedures shall be concluded within 6 months from the date on which the case is filed. Where there are special circumstances that require an extension, it may be extended for six months with the approval of the president of that court; and where an extension is still necessary, it is to be reported to the people's court at the level above for approval.
3. People's courts applying the simplified procedures to hear cases shall complete trial within three months of the date on which the case is filed. Where there are special circumstances that require an extension, it may be extended by one month with the approval of the president of that court.
4. Service of closing documents. After the people's court makes a judgment, it shall promptly serve the judgment documents on the parties to the case.
[Legal basis].
Labor Law of the People's Republic of China
Article 50 Wages shall be paid to the workers themselves in the form of money on a monthly basis. Wages shall not be deducted or unjustifiably delayed.
Article 91 Where an employer infringes upon the lawful rights and interests of a worker in any of the following circumstances, the labor administrative department shall order it to pay the worker's wages and remuneration and economic compensation, and may also order the payment of compensation:
1) Withholding or defaulting on the wages of workers without reason;
2) Refusal to pay wages and remuneration for extended working hours;
3) Paying wages to workers lower than the local minimum wage standard;
4) Failing to give economic compensation to the worker in accordance with the provisions of this Law after the termination of the labor contract.
Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes
Article 2 This Law shall apply to the following labor disputes between employers and workers within the territory of the People's Republic of China:
1) Disputes arising from the confirmation of labor relations;
2) Disputes arising from the conclusion, performance, modification, rescission and termination of labor contracts;
3) Disputes arising from removal, dismissal, resignation, or resignation;
4) Disputes arising from working hours, rest and vacation, social insurance, welfare, training, and labor protection;
5) Disputes arising from labor remuneration, medical expenses for work-related injuries, economic compensation or compensation, etc.;
6) Other labor disputes as stipulated by laws and regulations.
Article 5 In the event of a labor dispute, if the parties are unwilling to negotiate, fail to negotiate or fail to perform after reaching a settlement agreement, they may apply to the mediation organization for mediation; If the applicant is unwilling to mediate, fails to mediate, or fails to perform after reaching a mediation agreement, he or she may apply to the Labor Dispute Arbitration Commission for arbitration; If a person is dissatisfied with an arbitral award, he or she may file a lawsuit in the people's court, except as otherwise provided by this Law.
Article 28 The claimant shall submit a written application for arbitration and submit a copy according to the number of respondents. The statement of claim for arbitration shall contain the following particulars:
1) The name, gender, age, occupation, work unit and domicile of the worker, the name and domicile of the employer, and the name and position of the legal representative or principal responsible person;
2) the claim for arbitration and the facts and reasons on which it is based;
3) Evidence and evidence**, names and addresses of witnesses. If it is really difficult to write an arbitration application, it may apply orally, and the labor dispute arbitration commission shall record it in the record and inform the other party.
Article 29 Within five days from the date of receipt of the arbitration application, if the labor dispute arbitration commission finds that the conditions for acceptance are met, it shall accept the application and notify the applicant; Where it is found that the requirements for acceptance are not met, the applicant shall be notified in writing not to accept the application and the reasons shall be explained. If the labor dispute arbitration commission does not accept the case or fails to make a decision within the time limit, the applicant may file a lawsuit with the people's court on the labor dispute matter.
Article 42 The Arbitral Tribunal shall mediate before making an award.
Article 30 After accepting the arbitration application, the labor dispute arbitration commission shall serve a copy of the arbitration application to the respondent within five days. After receiving a copy of the arbitration application, the respondent shall submit a statement of defence to the labor dispute arbitration commission within 10 days. After receiving the statement of defense, the labor dispute arbitration commission shall send a copy of the statement of defense to the applicant within five days. If the respondent fails to submit a statement of defence, it shall not affect the conduct of the arbitration proceedings.
Labor Contract Law of the People's Republic of China
Article 30 [Labor Remuneration] The employer shall pay the labor remuneration to the worker in full and in a timely manner in accordance with the provisions of the labor contract and the provisions of the state. If the employer is in arrears or fails to pay the labor remuneration in full, the worker may apply to the local people's court for a payment order in accordance with the law, and the people's court shall issue a payment order in accordance with the law.
Author: Fa Que Consulting.
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