Now I always talk about the midlife crisis of people in the workplace.
Over 35 or 40 years old
Many units are reluctant to recruit any more.
What can I do?
As a post-60 s Lao Li faces this problem.
In order to be hired by the company you like
He applied for the post with a false ID card.
After being discovered, the company refused to help with "three insurances and one gold"
What the hell is going on here?
Is the company’s practice legal?
Brief introduction of the case
In 2007, a pharmaceutical company plans to recruit a group of business representatives. After 60, Lao Li wanted to apply after learning the recruitment information, but Lao Li was over 40 years old and did not meet the recruitment conditions of the company.
In order to be hired successfully, Lao Li asked his uncle Xiao Li to borrow his ID card to apply for a job. Xiao Li then gave Lao Li a resident ID card with a photo of Lao Li but his name was Xiao Li and his date of birth, address and ID number were all fictitious. Lao Li used the forged ID card and was successfully hired by a pharmaceutical company as a senior business representative in the name of "Xiao Li".
During my work, a pharmaceutical company applied for and paid the old-age insurance, employee medical insurance, employee unemployment insurance and housing accumulation fund for Lao Li in the name of "Xiao Li".
At the end of 2019, in order to solve the problem that he could not withdraw "three insurances and one gold" in his real identity after retirement, Lao Li finally confessed to a pharmaceutical company the fact that he used a false identity to join the company and asked a pharmaceutical company to change the identity information of "three insurances and one gold" for him. On January 21, 2020, Lao Li resigned from a pharmaceutical company.
Later, Lao Li applied to the Guangzhou Labor and Personnel Dispute Arbitration Commission for labor arbitration, requesting to confirm that he had a factual labor relationship with a pharmaceutical company from 2007 to 2019. The arbitration commission ruled that Lao Li’s arbitration request was rejected. Lao Li refused to accept the arbitration award and filed a lawsuit in Baiyun Court.
Defendant, a pharmaceutical company
Our company does not confirm that Lao Li is "Xiao Li" or that there is a labor relationship between the company and Lao Li.
Court judgment
The first-instance judgment of Baiyun Court confirmed that the plaintiff Lao Li had a factual labor relationship with a pharmaceutical company of the defendant from 2007 to 2019.
After the judgment, none of the parties appealed, and the judgment has taken legal effect.
Lao Li signed the Labor Contract by forging a resident ID card and providing false identity information in order to hide his real age and obtain the employment of a pharmaceutical company. The Labor Contracts signed by Lao Li by fraudulent means are invalid.
However, the invalidity of the Labor Contract does not affect the determination that Lao Li had a factual labor relationship with a pharmaceutical company from 2007 to 2019. Our court supported Lao Li’s claim to confirm the existence of a factual labor relationship.
In addition, because it was found that Lao Li used forged identity cards and used false identity cards in civil proceedings, it was suspected of constituting the crime of forging identity documents or using false identity documents, and the criminal clues of Lao Li and others were transferred to the public security organs separately according to law.
1、
Do I need to sign a written labor contract to join the company?
When establishing labor relations with laborers, the employing unit shall conclude a written labor contract.
According to Article 10 of the Labor Contract Law of People’s Republic of China (PRC), a written labor contract shall be concluded to establish labor relations. If a labor relationship has been established and a written labor contract has not been concluded at the same time, a written labor contract shall be concluded within one month from the date of employment.
2、
Did not sign the labor contract, is the labor relationship still established?
Failure to sign a labor contract does not mean that a labor relationship is not established.
Refer to Article 1 of the Notice on Establishing Labor Relations No.12 [2005] issued by the Ministry of Labor and Social Welfare: "An employer has not concluded a written labor contract, but the labor relationship is established under the following circumstances. (a) the employer and the employee meet the subject qualifications stipulated by laws and regulations; (2) The labor rules and regulations formulated by the employing unit according to law are applicable to laborers, who are subject to the labor management of the employing unit and engaged in paid labor arranged by the employing unit; (3) The labor provided by laborers is an integral part of the employer’s business. " Article 2: "The employing unit has not signed a labor contract with the employee and can refer to the following documents when determining that there is a labor relationship between the two parties: (1) wage payment vouchers or records (payroll roster for employees) and records of paying various social insurance premiums; (2) The "work permit", "service certificate" and other documents that can prove the identity issued by the employer to the workers; (3) Employment records such as "Registration Form" and "Application Form" filled out by the employee; (4) Attendance records; (5) Testimonies of other workers, etc. Among them, the relevant vouchers in items (1), (3) and (4) shall be borne by the employer. "
The Labor Contract Law of People’s Republic of China (PRC) focuses on protecting the rights and interests of workers, and stipulates that workers have seven rights, such as equal employment, remuneration, social insurance and welfare. When one’s rights are violated in job hunting and work, one can defend one’s rights through legal channels.
However, in the process of job application, workers must not take illegal measures and regard forging resident identity cards and using false resident identity cards as "shortcuts". Forging and using false identity cards will be suspected of constituting the crime of forging identity documents or using false identity documents. Yun Fajun reminds everyone here, don’t try the law!
Image source: Network
Contributed by: Zhang Wenyin and Ji Zejie of Jianggao Court.
Original title: "Forged identity to work, the unit did not even give" three insurances and one gold "? 》
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