中国上海市静安区石门一路 288 号兴业太古汇香港兴业中心二座 33 层 200041
200041, 33rd Floor, HKRI Taikoo Hui HKRI Centre Two, 288 Shimen 1st Road, Jing'an District, Shanghai, China
电话: +862160800909 传真: +862160800999
Phone: +862160800909 Fax: +862160800999
北京 - 上海 - 深圳 - 香港
Beijing - Shanghai - Shenzhen - Hong Kong
www.hankunlaw.com
200041, 33rd Floor, HKRI Taikoo Hui HKRI Centre Two, 288 Shimen 1st Road, Jing'an District, Shanghai, China
电话: +862160800909 传真: +862160800999
Phone: +862160800909 Fax: +862160800999
北京 - 上海 - 深圳 - 香港
Beijing - Shanghai - Shenzhen - Hong Kong
www.hankunlaw.com
胡雯婷 仲裁员 Hu Wenting, Arbitrator
常州市新北区劳动人事争议仲裁委员会 Changzhou Xinbei District Labor and Personnel Dispute Arbitration Commission
常州市新北区劳动人事争议仲裁委员会 Changzhou Xinbei District Labor and Personnel Dispute Arbitration Commission
事宜：申请人侯莹诉被申请人迪耐斯排气系统（常州）有限公司劳动争议案件被申请人质证意见（案号：新劳人仲案字（2021）第 374 号）
Matters: Respondent Hou Ying v. Respondent Dines Exhaust System (Changzhou) Co., Ltd. (Case No.: Xin Lao Ren Zhong Case (2021) No. 374)
尊敬的仲裁庭： Honourable Tribunal,
关于申请人侯莹 (“申请人”) 与被申请人迪耐斯排气系统 (常州) 有限公司 (“被申请人"或"迪耐斯”) 之间的劳动争议仲裁案件 (案号: 新劳人仲案字 (2021) 第 374 号, “本案”),针对申请人于 2021 年 8 月 24 日庭审后提交的补充证据, 被申请人迪耐斯排气系统（常州）有限公司现提交本质证意见，供仲裁庭参考。
With regard to the labor dispute arbitration case between the claimant Hou Ying (the "Applicant") and the respondent Dinex Exhaust System (Changzhou) Co., Ltd. (the "Respondent" or "Dines") (Case No.: Xin Lao Ren Zhong Case Zi (2021) No. 374, the "Case"), in response to the supplementary evidence submitted by the Claimant after the hearing on August 24, 2021, the Respondent Dinex Exhaust System (Changzhou) Co., Ltd. hereby submits the substantive evidence for the reference of the Arbitral Tribunal.
With regard to the labor dispute arbitration case between the claimant Hou Ying (the "Applicant") and the respondent Dinex Exhaust System (Changzhou) Co., Ltd. (the "Respondent" or "Dines") (Case No.: Xin Lao Ren Zhong Case Zi (2021) No. 374, the "Case"), in response to the supplementary evidence submitted by the Claimant after the hearing on August 24, 2021, the Respondent Dinex Exhaust System (Changzhou) Co., Ltd. hereby submits the substantive evidence for the reference of the Arbitral Tribunal.
一、工资流水表格 1. Salary flow form
该工资流水表格系申请人自行制作的文件, 被申请人对该证据的真实性、合法性和关联性不予认可。
The salary statement is a document made by the applicant himself, and the respondent does not recognize the authenticity, legitimacy and relevance of the evidence.
The salary statement is a document made by the applicant himself, and the respondent does not recognize the authenticity, legitimacy and relevance of the evidence.
二、社保记录表格 2. Social security record form
该社保记录表格系申请人自行制作的文件，被申请人对该证据的真实性、合法性和关联性不予认可。
The social security record form is a document made by the applicant himself, and the respondent does not recognize the authenticity, legitimacy and relevance of the evidence.
The social security record form is a document made by the applicant himself, and the respondent does not recognize the authenticity, legitimacy and relevance of the evidence.
三、工资流水 3. Salary flow
被申请人对证据三之 “常州工资流水”（补充证据的第 3 页至第 9 页）的真实性和合法性予以认可, 但不认可其关联性。该证据证明被申请人作为申请人的用人单位, 按照双方之间的劳动合同，按月向申请人支付工资税前人民币 25,000 元。根据申请人的社保缴费记录，被申请人实际自2012年6月便开始为申请人缴纳社保，也就是说，自2012年6月1日签订无固定期限劳动合同后, 申被双方便建立了正式的劳动关系。申请人提交的 2017 年 8 月开始的工资明细，仅能证明被申请人在2017年8月后正常向申请人支付工资报酬，申被双方在期间存在劳动关系，并不能证明双方劳动关系的起始于 2017 年 8 月。
The respondent recognized the authenticity and legitimacy of Exhibit 3 "Changzhou Salary Flow" (pages 3 to 9 of the supplementary evidence), but did not recognize its relevance. This evidence proves that the respondent, as the applicant's employer, paid the applicant RMB 25,000 before salary tax on a monthly basis in accordance with the employment contract between the two parties. According to the applicant's social security payment records, the respondent actually began to pay social security for the applicant in June 2012, that is, since the signing of the indefinite-term labor contract on June 1, 2012, the applicant and the applicant have established a formal employment relationship. The wage details submitted by the applicant starting from August 2017 can only prove that the respondent paid wages and remuneration to the applicant normally after August 2017, and the existence of an employment relationship between the applicant and the respondent during this period cannot prove that the employment relationship between the two parties began in August 2017.
The respondent recognized the authenticity and legitimacy of Exhibit 3 "Changzhou Salary Flow" (pages 3 to 9 of the supplementary evidence), but did not recognize its relevance. This evidence proves that the respondent, as the applicant's employer, paid the applicant RMB 25,000 before salary tax on a monthly basis in accordance with the employment contract between the two parties. According to the applicant's social security payment records, the respondent actually began to pay social security for the applicant in June 2012, that is, since the signing of the indefinite-term labor contract on June 1, 2012, the applicant and the applicant have established a formal employment relationship. The wage details submitted by the applicant starting from August 2017 can only prove that the respondent paid wages and remuneration to the applicant normally after August 2017, and the existence of an employment relationship between the applicant and the respondent during this period cannot prove that the employment relationship between the two parties began in August 2017.
关于证据三之 “丹麦总部支付工资”（补充证据第 10 页至第 11 页），被申请人对其真实性、合法性和关联性均不予认可。首先，该等证据并非形成于中国境内，且为丹麦文，申请人未提供相应翻译件，该证据不符合中国民事诉讼法所规定证据的形式要求，故被申请人不认可其真实性和合法性。其次，申请人主张其外币胀户中收到的丹麦克朗为迪耐斯丹麦总部支付的 “工资”, 说明申请人亦认可其所收到丹麦克朗款项是迪耐斯丹麦总部根据其与申请人之间签订的协议所支付的约定对价, 而非被申请人支付的工资报酬, 该等款项与申被双方之间的劳动关系无关。
With regard to Exhibit 3, "Wages paid by the Danish headquarters" (pages 10 to 11 of the supplementary evidence), the respondent did not recognize its authenticity, legality and relevance. First of all, the evidence was not formed in China and was in Danish, and the applicant did not provide the corresponding translation, which did not meet the formal requirements of evidence stipulated in the Civil Procedure Law of the People's Republic of China, so the respondent did not recognize its authenticity and legitimacy. Secondly, the Applicant asserted that the Danish krone received from its foreign currency account was the "salary" paid by Dines Denmark headquarters, indicating that the Applicant also recognized that the Danish krone received by it was the agreed consideration paid by Dines Denmark headquarters under the agreement signed between it and the Applicant, and not the wages and remuneration paid by the Respondent, and such payments had nothing to do with the employment relationship between the Applicant and the Respondent.
With regard to Exhibit 3, "Wages paid by the Danish headquarters" (pages 10 to 11 of the supplementary evidence), the respondent did not recognize its authenticity, legality and relevance. First of all, the evidence was not formed in China and was in Danish, and the applicant did not provide the corresponding translation, which did not meet the formal requirements of evidence stipulated in the Civil Procedure Law of the People's Republic of China, so the respondent did not recognize its authenticity and legitimacy. Secondly, the Applicant asserted that the Danish krone received from its foreign currency account was the "salary" paid by Dines Denmark headquarters, indicating that the Applicant also recognized that the Danish krone received by it was the agreed consideration paid by Dines Denmark headquarters under the agreement signed between it and the Applicant, and not the wages and remuneration paid by the Respondent, and such payments had nothing to do with the employment relationship between the Applicant and the Respondent.
关于证据三之 “丹麦总部支付个人卡 5506.91 美元” (补充证据第 12 页至 26 页), 被申请人对其真实性、合法性和关联性均不予认可。首先, 该等证据未能显示来源, 即为哪家银行出具的申请人个人账户明细，故被申请人对该证据的真实性和合法性不予认可。其次，被申请人亦不认可关联性，申请人主张该证据为迪耐斯丹麦总部的付款，即便迪耐斯丹麦总部确向申请人支付了相关款项，该等款项亦属于迪耐斯丹麦总部根据其与申请人之间签订的协议所支付的约定对价，而非被申请人支付的工资报酬，该等款项与申被双方之间的劳动关系无关。
With regard to Exhibit 3, "US$5,506.91 paid for a personal card at the headquarters in Denmark" (pages 12 to 26 of the supplementary evidence), the respondent did not recognize its authenticity, legitimacy and relevance. First of all, the evidence failed to show the source, i.e., the bank that issued the applicant's personal account details, so the respondent did not recognize the authenticity and legitimacy of the evidence. Secondly, the respondent also did not recognize the relevance, and the applicant claimed that the evidence was a payment made by the Danish headquarters of Dines, and even if the headquarters of Dinex Denmark did pay the relevant amounts to the applicant, such payments were the agreed consideration paid by the headquarters of Dinex Denmark in accordance with the agreement signed between the respondent and the applicant, rather than the wages and remuneration paid by the respondent, and such payments had nothing to do with the employment relationship between the applicant and the respondent.
With regard to Exhibit 3, "US$5,506.91 paid for a personal card at the headquarters in Denmark" (pages 12 to 26 of the supplementary evidence), the respondent did not recognize its authenticity, legitimacy and relevance. First of all, the evidence failed to show the source, i.e., the bank that issued the applicant's personal account details, so the respondent did not recognize the authenticity and legitimacy of the evidence. Secondly, the respondent also did not recognize the relevance, and the applicant claimed that the evidence was a payment made by the Danish headquarters of Dines, and even if the headquarters of Dinex Denmark did pay the relevant amounts to the applicant, such payments were the agreed consideration paid by the headquarters of Dinex Denmark in accordance with the agreement signed between the respondent and the applicant, rather than the wages and remuneration paid by the respondent, and such payments had nothing to do with the employment relationship between the applicant and the respondent.
四、完税证明 4. Tax payment certificate
被申请人对该等完税证明的真实性、合法性和关联性均不予认可。
The respondent did not recognize the authenticity, legitimacy and relevance of the tax payment certificates.
The respondent did not recognize the authenticity, legitimacy and relevance of the tax payment certificates.
首先, 该等证据并非形成于中国境内, 且为丹麦文, 申请人未提供相应翻译件, 不符合中国民事诉讼法所规定证据的形式要求，故被申请人不认可其真实性和合法性。
First of all, the evidence was not formed in China and was in Danish, and the applicant did not provide the corresponding translation, which did not meet the formal requirements of evidence stipulated in the Civil Procedure Law of the People's Republic of China, so the respondent did not recognize its authenticity and legitimacy.
First of all, the evidence was not formed in China and was in Danish, and the applicant did not provide the corresponding translation, which did not meet the formal requirements of evidence stipulated in the Civil Procedure Law of the People's Republic of China, so the respondent did not recognize its authenticity and legitimacy.
其次，该证据页首显示的邮寄地址为申请人在丹麦的住址。被申请人为一家依法注册在中国境内的公司, 根据申被双方劳动合同, 被申请人与申请人约定的月工资为人民币 25,000元, 并由被申请人根据中国法律规定在国内为申请人代扣代缴个人所得税。而该证据系申请人在境外取得的收入，与申请人和被申请人之间的劳动关系无关，故被申请人对该证据的关联性不予认可。
Secondly, the mailing address shown at the top of the evidence page is the applicant's residential address in Denmark. The Respondent is a company legally registered in China, and according to the employment contract between the Respondent and the Applicant, the Respondent and the Applicant agreed to a monthly salary of RMB 25,000, and the Respondent shall withhold and pay individual income tax for the Applicant in China in accordance with the laws of the People's Republic of China. However, the evidence was the income obtained by the applicant abroad and had nothing to do with the employment relationship between the applicant and the respondent, so the respondent did not recognize the relevance of the evidence.
Secondly, the mailing address shown at the top of the evidence page is the applicant's residential address in Denmark. The Respondent is a company legally registered in China, and according to the employment contract between the Respondent and the Applicant, the Respondent and the Applicant agreed to a monthly salary of RMB 25,000, and the Respondent shall withhold and pay individual income tax for the Applicant in China in accordance with the laws of the People's Republic of China. However, the evidence was the income obtained by the applicant abroad and had nothing to do with the employment relationship between the applicant and the respondent, so the respondent did not recognize the relevance of the evidence.
五、社保记录 5. Social security records
被申请人认可两份社保记录的真实性和合法性, 但对关联性不予认可。
The respondent recognized the authenticity and legitimacy of the two social security records, but did not recognize the relevance.
The respondent recognized the authenticity and legitimacy of the two social security records, but did not recognize the relevance.
经被申请人庭后核实，在2012年6月至2015年9月期间以及2016年7月至2016年12月期间，被申请人委托江苏省外事服务中心有限公司为申请人在广东省佛山市代缴社会保险和住房公积金。由于江苏省外事服务中心有限公司在佛山市没有分支机构，其转委托佛山当地有合作关系的社保代缴服务单位为申请人在佛山缴纳社会保险和公积金。因此，对于申请人的社保缴费情况，被申请人确认，被申请人自2012年6月1日双方签订无固定期限劳动合同后开始为申请人缴纳社会保险，直至2015年9月双方暂停履行劳动合同。由于电被双方手 2016年7月继续風行2012年6月1日签订的无固定期限劳动合同，被申请人同时恢复为申请人缴纳社会保险直至2020年9月双方劳动合同正式解除。
After verification by the respondent, during the period from June 2012 to September 2015 and from July 2016 to December 2016, the respondent entrusted Jiangsu Foreign Affairs Service Center Co., Ltd. to pay social insurance and housing provident fund for the applicant in Foshan City, Guangdong Province. Since Jiangsu Foreign Affairs Service Center Co., Ltd. does not have a branch in Foshan City, it entrusts a local social security payment service unit with cooperative relations in Foshan to pay social insurance and provident fund for the applicant in Foshan. Therefore, with regard to the applicant's social security contributions, the respondent confirmed that the respondent began to pay social insurance for the applicant after the two parties signed the indefinite labor contract on June 1, 2012, until the two parties suspended the performance of the labor contract in September 2015. Due to the fact that the two parties continued to implement the indefinite-term labor contract signed on June 1, 2012 in July 2016, the respondent resumed the payment of social insurance for the applicant at the same time until the employment contract between the two parties was officially terminated in September 2020.
After verification by the respondent, during the period from June 2012 to September 2015 and from July 2016 to December 2016, the respondent entrusted Jiangsu Foreign Affairs Service Center Co., Ltd. to pay social insurance and housing provident fund for the applicant in Foshan City, Guangdong Province. Since Jiangsu Foreign Affairs Service Center Co., Ltd. does not have a branch in Foshan City, it entrusts a local social security payment service unit with cooperative relations in Foshan to pay social insurance and provident fund for the applicant in Foshan. Therefore, with regard to the applicant's social security contributions, the respondent confirmed that the respondent began to pay social insurance for the applicant after the two parties signed the indefinite labor contract on June 1, 2012, until the two parties suspended the performance of the labor contract in September 2015. Due to the fact that the two parties continued to implement the indefinite-term labor contract signed on June 1, 2012 in July 2016, the respondent resumed the payment of social insurance for the applicant at the same time until the employment contract between the two parties was officially terminated in September 2020.
六、离职证明 6. Certificate of resignation
由于申请人提供的离职证明为复印件，在没有原件的情况下，被申请人无法核实该份离职证明是否有公司盖章出具。同时，申请人提交的离职证明显示该文件的出具时间为 2015 年 8 月 26 日，经被申请人核实，公司该时间段的人事档案中仅有一份关于申请人的人事文件，即其于 2012 年 6 月 1 日与被申请人签订的劳动合同, 除此之外, 公司人事档案中并无申请人提交的离职证明或相关离职记录。因此，被申请人不予确认离职证明的真实性与合法性。
Since the resignation certificate provided by the applicant is a photocopy, the respondent cannot verify whether the resignation certificate has been stamped by the company in the absence of the original. At the same time, the resignation certificate submitted by the applicant showed that the document was issued on August 26, 2015, and after verification by the respondent, there was only one personnel document about the applicant in the company's personnel file during that time period, that is, the employment contract signed between the applicant and the respondent on June 1, 2012, and there was no resignation certificate or relevant resignation record submitted by the applicant in the company's personnel file. Therefore, the respondent did not confirm the authenticity and legitimacy of the resignation certificate.
Since the resignation certificate provided by the applicant is a photocopy, the respondent cannot verify whether the resignation certificate has been stamped by the company in the absence of the original. At the same time, the resignation certificate submitted by the applicant showed that the document was issued on August 26, 2015, and after verification by the respondent, there was only one personnel document about the applicant in the company's personnel file during that time period, that is, the employment contract signed between the applicant and the respondent on June 1, 2012, and there was no resignation certificate or relevant resignation record submitted by the applicant in the company's personnel file. Therefore, the respondent did not confirm the authenticity and legitimacy of the resignation certificate.
关于关联性，被申请人认为，申被双方 2012 年 6 月 1 日签订的无固定期限劳动合同实际于2020年9月19日根据被申请人作出的解除通知而正式解除。在此之前，由于申请人自身原因，車被双方一致同意在2015年9月至2016年6月期间暂时中止履行双方 2012 年 6 月 1日签订的劳动合同，自2016年7月开始，双方恢复履行劳动合同。对于申被双方在2015年 9月至2016年6月期间的中止履行劳动合同的情况，申请人在2021年8月24日的庭审过程）中亦予以确认。因此，自2012年6月1日签订唯一的无固定期限劳动合同后，申被双方始终在履行该份劳动合同，即使在2015年9月至2016年6月期间存在中断的情况，但自2016年 7 月起申被双方继续履行该劳动合同，被申请人依据该合同按月向申请人支付工资并缴纳社保和公积金，直至被申请人 2020 年 9 月 19 日因申请人不胜任工作解除该份劳动合同。
With regard to relevance, the respondent argued that the indefinite-term employment contract signed by the applicant and the respondent on June 1, 2012 was actually formally terminated on September 19, 2020 in accordance with the notice of termination made by the respondent. Prior to this, due to the applicant's own reasons, both parties agreed to temporarily suspend the performance of the labor contract signed by the two parties on June 1, 2012 from September 2015 to June 2016, and the two parties resumed the performance of the labor contract from July 2016. The suspension of the performance of the employment contract between the applicant and the respondent from September 2015 to June 2016 was also confirmed by the applicant during the hearing on August 24, 2021. Therefore, since the signing of the only indefinite-term employment contract on June 1, 2012, the applicant and the respondent have been performing the employment contract, and even though there was a interruption from September 2015 to June 2016, the applicant and the applicant continued to perform the employment contract from July 2016, and the respondent paid wages and social security and provident fund to the applicant on a monthly basis in accordance with the contract, until the respondent terminated the employment contract on September 19, 2020 due to the applicant's incompetence.
With regard to relevance, the respondent argued that the indefinite-term employment contract signed by the applicant and the respondent on June 1, 2012 was actually formally terminated on September 19, 2020 in accordance with the notice of termination made by the respondent. Prior to this, due to the applicant's own reasons, both parties agreed to temporarily suspend the performance of the labor contract signed by the two parties on June 1, 2012 from September 2015 to June 2016, and the two parties resumed the performance of the labor contract from July 2016. The suspension of the performance of the employment contract between the applicant and the respondent from September 2015 to June 2016 was also confirmed by the applicant during the hearing on August 24, 2021. Therefore, since the signing of the only indefinite-term employment contract on June 1, 2012, the applicant and the respondent have been performing the employment contract, and even though there was a interruption from September 2015 to June 2016, the applicant and the applicant continued to perform the employment contract from July 2016, and the respondent paid wages and social security and provident fund to the applicant on a monthly basis in accordance with the contract, until the respondent terminated the employment contract on September 19, 2020 due to the applicant's incompetence.
七、广东省外国机构服务处出具的解除《外事服务合同》证明
7. Certificate of termination of the Foreign Affairs Service Contract issued by the Service Office of Foreign Institutions of Guangdong Province
被申请人不认可该份证据的真实性、合法性和关联性。该份证据为复印件且有拼接痕迹，故被申请人不认可该证据的真实性和合法性。
The respondent did not recognize the authenticity, legitimacy and relevance of the evidence. The evidence was a copy and there were traces of splicing, so the respondent did not recognize the authenticity and legitimacy of the evidence.
The respondent did not recognize the authenticity, legitimacy and relevance of the evidence. The evidence was a copy and there were traces of splicing, so the respondent did not recognize the authenticity and legitimacy of the evidence.
被申请人不认可关联性，在2015年9月14日至2016年1月15日期间，申请人与广东省外国机构服务处是否存在劳动关系与申被双方劳动合同的履行无关，即申被双方曾一致同
The respondent did not recognize the relevance, and whether there was an employment relationship between the applicant and the Guangdong Provincial Foreign Organization Service Office during the period from September 14, 2015 to January 15, 2016 had nothing to do with the performance of the labor contract between the applicant and the respondent, that is, the applicant and the respondent had agreed on the same
The respondent did not recognize the relevance, and whether there was an employment relationship between the applicant and the Guangdong Provincial Foreign Organization Service Office during the period from September 14, 2015 to January 15, 2016 had nothing to do with the performance of the labor contract between the applicant and the respondent, that is, the applicant and the respondent had agreed on the same
多湖合作。 Multi-lake cooperation.