Nowadays, many hairdressers will recruit "apprentices", and after recruiting "apprentices", the hairdressers will train them and take up employment. However, many hairdressers do not have a written employment contract with their apprentices. Recently, the Huaiyin District People's Court of Jinan City, Shandong Province announced such a case, a hairdresser believed that Mr. Zhang, who worked in the store, was an apprentice, and refused to pay his wages after he proposed to leave the job.
"Apprentice" or employee? The refusal of the hairdresser to pay wages led to disputes
In July 2022, Mr. Zhang joined a hairdresser in Jinan, learning hairdressing from the store master and doing some auxiliary work at the same time.
Mr. Zhang: I go to work at 9 a.m. and leave work at 8 p.m., and my usual job is to greet customers at the bar and help the hairstylist do some perming and dyeing work. The basic salary he said before was 1,200 yuan, 300 yuan for food, and then 8% commission.
Although Mr. Zhang did not sign a labor contract with the hairdresser, Mr. Zhang said that the two parties clearly agreed on the content and time of work, starting work at 9 a.m. and leaving work at 8 p.m., with one day off per week, and the hairdresser had systematic attendance management. Five months later, Mr. Zhang resigned from the hairdresser and asked the hairdresser to settle the unpaid wages.
Mr. Zhang: When I asked him to resign and ask for a salary, the boss's phone couldn't get through, and WeChat didn't reply to messages. The boss said that I was an apprentice, and he didn't pay me a salary, and I was only given some living allowance every day.
Mr. Zhang did not recognize the so-called apprenticeship status of the hairdressing company and believed that he should be paid wages for labor, so he applied to the Jinan Huaiyin District Labor and Personnel Dispute Arbitration Commission for arbitration, and the arbitration commission ruled that since the hairdressing company had not signed a labor contract with Mr. Zhang, he should pay Mr. Zhang more than 5,300 yuan for the difference in wages twice. Dissatisfied with the arbitral award, the hairdressing company filed a lawsuit with the court, requesting an order not to pay double the wages of the unsigned employment contract.
The hairdresser was ordered to pay double wages without signing a labor contract
The so-called "apprentice" is indeed the traditional name of some traditional professions, and it is still continuing in some industries, so how is this relationship legally recognized at present? Specifically, in this case, was there an employment relationship between Mr. Zhang and the hairdresser?
At the trial, the hairdresser argued that Mr. Zhang was an apprentice and temporary worker, had no fixed working hours, no fixed salary, and only gave some daily subsidies, so he did not have an employment relationship with the barbershop. After trial, the court held that the labor content provided by Mr. Zhang included assisting customers in the hairdresser to wash their hair, assisting in perming and dyeing their hair, cleaning the shop, etc., which were part of the business of the hairdresser. According to the WeChat chat records between Mr. Zhang and the legal representative of the hairdresser and the attendance records of DingTalk, Mr. Zhang repeatedly asked for leave through WeChat, which can confirm that the hairdresser has the right to manage Mr. Zhang's employment.
Judge Lu Xin of the Huaiyin District People's Court of Jinan City: The labor provided by Zhang is also part of the business of the barber shop, and Zhang accepted the employment management of a barber shop during his work and engaged in paid labor arranged by a barber shop, and there is a labor relationship between the two parties.
Paragraph 1 of Article 10 of the Labor Contract Law of the People's Republic of China stipulates that a written labor contract shall be concluded to establish an employment relationship. Paragraph 1 of Article 82 stipulates that if an employer fails to conclude a written labor contract with an employee for more than one month but less than one year from the date of employment, it shall pay the employee twice the monthly wage.
The court finally ruled that a hairdressing and styling company in Jinan should pay Mr. Zhang more than 5,300 yuan for the difference in wages twice the amount without signing a written labor contract within 10 days from the effective date of the judgment.
The "apprentice" had a de facto employment relationship with the hairdresser
In this case, the M.A. Hair Shop did not sign a written employment contract with Mr. Zhang, and refused to pay wages on the grounds of an "apprenticeship" relationship, so can this be a condition for determining the existence of an employment relationship between the two parties? What other issues should workers pay attention to when entering the workforce?
The judge said that whether or not to sign a written employment contract is only one of the ways for the parties to establish an employment relationship, and is not a necessary condition for the establishment of an employment relationship. If the rights and obligations of both parties during the apprenticeship fully conform to the basic characteristics of a de facto employment relationship, then a de facto employment relationship is established between the two parties.
The judge said that, in addition to the circumstances involved in this case, there are still cases in judicial practice where employers do not pay labor remuneration to employees on time and in full, and do not pay social security in accordance with the law. If the employer fails to pay the employee in full and on time, it may face penalties from the labor administrative department, and the employer shall also pay economic compensation to the employee for terminating the employment relationship on this ground.
Judge Lu Xin of the People's Court of Huaiyin District, Jinan City: Workers should pay attention to the relevant clauses in the labor contract such as the term of the labor contract, working hours, labor remuneration and other important contents. In the event of a dispute between an employee and an employer, the employee may seek help or relief from the labor administration department of the trade union, and if necessary, may take up the weapon of law to protect his or her legitimate rights and interests.
Source: CCTV news client