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After the certificate of first-class registered fire engineer was attached to the company, the company only paid 40000 yuan, and the 260000 yuan that had expired had not been paid
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The engineer sued the company
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The court held that there was no labor relationship between the two parties, and the employment agreement signed by the two parties should be invalid
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All claims were rejected
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Furthermore, it is illegal to sign a part-time employment contract
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In order to sign a part-time employment contract, any part-time employment agreement signed by a registered engineer, a registered constructor and a unit is in essence invalid
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Once there is a dispute, it is not protected by law
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Plaintiff: Chu XX defendant: Guangdong XX Testing Co., Ltd
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(hereinafter referred to as the testing company) plaintiff’s claim: 1
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Request to order the defendant to pay 260000 yuan of salary (consulting service fee) and interest to the plaintiff (the interest is 260000 yuan as the principal, calculated from September 10, 2018 according to the same loan interest rate of the bank in the same period to the date of principal repayment, temporarily calculated to March 9, 2019 as 5655 yuan)
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2
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The costs of the case shall be borne by the defendant
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Facts and reasons: on September 2, 2016, the plaintiff and the defendant signed an employment agreement, which agreed that the defendant would employ the plaintiff as the defendant’s part-time engineering technical consultant, with a contract term of three years and an annual salary of 100000 yuan
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The agreement also stipulates that the defendant shall pay 20000 yuan to the plaintiff after signing the employment agreement and the plaintiff submitting the original qualification certificate to the defendant, 80000 yuan to the plaintiff within 7 days after the plaintiff’s first level registered fire engineer qualification certificate is successfully registered in the defendant’s enterprise, and the fee for the next two years shall be paid to the plaintiff in a lump sum within 7 days corresponding to the second and third year of the effective date of the contract《 After the signing of the employment agreement, the plaintiff handed over the original qualification certificate and other information to the defendant according to the agreement, but the defendant deliberately delayed the registration of the qualification certificate, and refused to pay the salary to the plaintiff according to the contract
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On June 8, 2018, the defendant sent the “opinions on the payment of fees for class I registered Fire Engineers” to the plaintiff, informing that the plaintiff had reported to Guangdong provincial fire brigade for filing in the database, waiting for evaluation and registration, and promised to pay the employment salary in strict accordance with the contract
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However, as of today, the defendant has only paid 40000 yuan to the plaintiff, and 260000 yuan due has not been paid
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In conclusion, the plaintiff believes that although the employment agreement stipulates that the plaintiff’s first level registered fire engineer certificate shall pay the first year’s late fee of 80000 yuan after it is successfully registered in the enterprise, the defendant shall pay the plaintiff the first year’s fee of 100000 yuan in full due to the defendant’s delay in going through the registration procedures; The expenses for the second and third years shall be paid within 7 days of the corresponding dates of the second year and the third year on the effective date of the contract
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The contract takes effect on September 2, 2016, so the defendant shall pay RMB 100000 for the second year on September 9, 2017 and RMB 100000 for the third year on September 9, 2018
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However, the defendant has been maliciously defaulting on the fees that should be paid to the plaintiff, and his behavior has seriously infringed on the legitimate rights and interests of the plaintiff
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Therefore, the plaintiff filed a lawsuit to the court, hoping that the judgment would be as requested
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The defendant’s testing company argued that: 1
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After the plaintiff and the defendant signed the employment agreement, because the plaintiff could not provide relevant job and identity certificate, and failed to assist the defendant to pass the relevant business assessment, the defendant did not obtain the qualification of fire service enterprise, which was caused by the fault of the plaintiff
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2
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In the process of applying for the qualification, the plaintiff did not actually arrive at the defendant’s post and perform the labor duties
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The so-called employment of both parties is actually the plaintiff borrowing the defendant’s fire engineer certificate to achieve the purpose of the defendant’s application for the qualification of fire service
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In essence, the borrowing behavior violates the provisions of the normative documents of the State Council and the provisions of the competent authorities, If the illegal purpose is covered up in legal form, the agreement between the two parties is invalid
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Based on the above two opinions, the plaintiff’s claim should not be supported and the court should be requested to reject the plaintiff’s claim
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The plaintiff Chu submitted the employment agreement, qualification certificate of first-class registered fire engineer, express details sheet, opinions on payment of first-class registered fire engineer fees, notice of rejection, website screenshot, wechat chat record and other evidence in accordance with the law
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The defendant testing company submitted the talent recommendation entrustment service agreement and other evidence
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The court organized the parties to cross examine, and the defendant testing company had no objection to the evidence submitted by the plaintiff Chu, while the plaintiff Chu did not confirm the evidence submitted by the defendant testing company
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The court shall confirm the evidence that the parties have no objection and support it in the volume
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According to the statement of the parties and the evidence confirmed by examination, the court finds that the facts are as follows: on September 2, 2016, the testing company, as Party A, and Chu, as Party B, signed the employment agreement, which stipulates that Party A shall employ Party B as Party A’s part-time engineering technical consultant
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The registration period for Party A to employ Party B is three years, and the annual salary is 100000 yuan, starting from the date of signing this contract
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After Party A verifies that Party B’s examination results of first-class registered fire engineer reach the qualification standard of first-class registered fire engineer, both parties sign the contract and submit the original qualification certificate, and Party A will pay 20000 yuan in advance
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Party A shall be responsible for Party B’s first class Registered Fire engineer qualification certificate registration procedures, and bear the corresponding expenses
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Party A shall pay Party B the balance of 80000 yuan within 7 days after Party B’s first class Registered Fire engineer qualification certificate is successfully registered in Party A’s enterprise
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The expenses for the next two years shall be paid to Party B in a lump sum within 7 days of the corresponding dates of the second year and the third year after the effective date of the contract
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Party A shall guarantee the timely and effective registration and annual inspection of Party B’s first-class registered fire engineer qualification certificate, and ensure the timely implementation of Party B’s continuing education
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During the employment period, Party B shall bear the renewal registration fee, the annual examination fee and the annual continuing education and relevant business training fee of the competent department of the industry
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The plaintiff shall complete the registration and payment and other relevant procedures, and Party A shall also pay Party B other reasonable expenses such as transportation expenses, accommodation expenses, etc; If Party A needs Party B to come to the site for work, Party B shall be given a subsidy of 300 yuan per day for work delay
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Party A shall be responsible for providing and handling the data and performance certification materials required for annual inspection, and Party B shall provide relevant cooperation (including the data in his performance contract and the seal of practice)
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Party A undertakes that Party B’s registration certificate is only used for the enterprise’s application for qualification, qualification upgrading or annual qualification inspection
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In addition, Party A shall not use Party B’s first class Registered Fire engineer registration certificate and relevant data to attach to engineering and design projects without Party B’s permission
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If the name of Party A’s enterprise is changed, Party A may register Party B’s first class Registered Fire engineer qualification certificate with the changed enterprise; Party A may also register Party B’s first class Registered Fire engineer qualification certificate with Party A’s subordinate enterprises
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The practicing seal shall be kept by Party B
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If Party A wants to use Party B’s certificate or seal, it can only be used after negotiation and agreement between both parties.
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