Selection, preparation of evidence in labour dispute cases

By Tracy Liu, Jingtian & Gongcheng
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Employers usually bear a heavier burden of proof than employees in labour dispute cases. Therefore, how to select, organize and prepare evidence is particularly important for employers. In this article, based on possible misunderstandings in practice, the author, based on representational experience in labour dispute cases, shares some practical suggestions on evidence selection and preparation by employers.

Common misunderstandings

In labour dispute cases, the evidence submitted by the employer may fail to be accepted by the adjudicator, or the employer may even lose the lawsuit eventually because of the following misunderstandings.

Tracy-Liu,-Partner,-Jingtian-&-Gongcheng
Tracy Liu
Partner
Jingtian & Gongcheng

Submitting all possible relevant evidence without screening

Many employers often think that the more evidence submitted to prove their claims or refute the other party, the more likely they are to win. In fact, the seemingly favourable evidence may imply something unfavourable towards the employer. Moreover, if multiple pieces of evidence submitted contradict each other on the same fact to be proved, it is also likely to bring adverse consequences to the employer.

For example, in order to prove the employee’s entry date, the employer submits both the written employment contract and the bank account statement of salary payment, but the latter shows that the initial salary payment date is earlier than the effective date of the employment contract. In this case, the adjudicator is more likely to make a decision against the employer.

Ignoring the authenticity and legitimacy of audio-visual material and electronic data

In recent years, audio-visual material and electronic data are often submitted as evidence in labour dispute cases. For example, audio recordings generated during communication between employees and employers on matters such as salaries and remuneration, termination of employment contracts, or violations of discipline by employees, and surveillance videos of working places are audio-visual material, while chatting records and moments of WeChat and electronic attendance data are electronic evidence.

In practice, the authenticity and legitimacy of such evidence often fail to be recognized due to careless handling by employers. First, in terms of authenticity, taking recorded evidence as an example, the adjudicator requires that the audio should be stored in the original recording equipment, and all the contents of the original audio should be submitted. If the employer copies the audio and deletes it from the original equipment, or just cuts out fragments of the audio, or synthesizes different audio tracks, the recorded evidence will lose its authenticity.

Second, audio-visual material and electronic data should be obtained by legal means, and evidence obtained by infringing on the legitimate rights and interests of others, or by other illegal means (such as audio and video recordings obtained in private places like washrooms, locker rooms or private residences of employees) will constitute illegal evidence and cannot be adopted.

Overestimating or over-relying on the role of witness testimony

Employers often overestimate the role of witness testimony, believing that the problem can be explained as long as other employees testify. As a matter of fact, adjudicators usually think that statements made by serving employees cannot objectively reflect the facts because of their interests, so the statements are not recognized. More importantly, witness testimony can only serve as auxiliary proof. In practice, adjudicators generally do not directly identify the facts of a case based only on such single evidence as witness testimony, but usually require other evidence to support it.

Practical suggestions

The author suggests that employers pay attention to the following matters when selecting and preparing evidence.

Screening of evidence

The employer should sort out the facts to be proved around such aspects as the claims of the case, the focus of disputes and its own views, and comprehensively sort out and evaluate its evidence according to the facts to be proved, excluding the evidence that is unfavourable, avoiding contradiction of evidence, and finally selecting evidence that supports its case.

Overall consideration

Labour dispute cases have particularity in providing evidence, which is manifested in the fact that if evidence related to the matters in dispute is under the employer’s control and management (such as payroll, attendance records, overtime examination and approval forms, leave application forms, etc.), it should be provided by the employer. Therefore, the employer should make overall consideration and preparation in advance for evidence unfavourable to itself that the employer bears the burden of proof for, so as to deal with the evidence later effectively.

In a case that the author represented concerning an employee’s claim for overtime pay, the client, as the employer, was requested to submit the employee’s attendance records to find out whether there was overtime. Before the trial of the case, the author assisted the employer to comprehensively sort out the attendance records and leave application forms of the employee, and found that the evidence submitted by the employee to prove overtime was inconsistent with the situation reflected by the attendance records and leave application forms retained by the employer.

In addition to submitting attendance records, the author also assisted the employer in preparing and submitting such evidence as surveillance videos, access card records and leave application forms to prove that the overtime claimed by the employee did not exist. The court finally supported the employer and rejected the employee’s claim for overtime pay.

Fix evidence

When submitting electronic data and audio-visual material, the employer should pay attention to the requirements for document preservation, ensure integrity of the documents, and fix them by notarization if necessary. In addition, when collecting and preparing electronic data evidence, some skills can be used to enhance its probative force.

Taking WeChat chatting records as an example, it is often difficult to prove that the person in the historical chatting record is the party involved in the case. In this regard, the author suggests confirming the identity of the other party through some additional simple questions in WeChat communication, in case the other party denies the information sent by himself/herself in the future. For important information that has been communicated through WeChat, the employer may consider further confirming it by means of written letters, telephone calls and recordings, for example.

Tracy Liu is a partner at Jingtian & Gongcheng

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Jingtian & Gongcheng
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Tel: +86 21 2613 6125
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