Viewpoint | Whether the advance bonus of the enterprise can be refunded by the employee.

Case one:Huang joined Notary A on August 10, 2016. Now Notary A and Huang both recognize that the labor relationship between the two parties has been dissolved. On January 9, 2018, the Beijing Municipal Bureau of Justice issued the ''Measures on Adjusting and Regulating the Income Distribution of Notary Institutions in Beijing (Trial) '', which clearly improved the total performance salary system and determined that the performance salary of notary institutions adopts the dynamic management of excess diminishing The method shall not exceed the approved total performance salary: the part of the annual business income below 10 million (including 10 million) shall not exceed 40%, the part of annual business income 10 million -50 million (including 50 million) shall not exceed 30%, the part of annual business income 50 million -150,000,000 (including 150,000,000) shall not exceed 20%, and the part of annual business income above 150,000,000 shall not exceed 10%; The maximum annual income of notaries shall not exceed 600000 yuan.

On May 8, 2021, the Beijing Municipal Bureau of Justice issued the ''Emergency Notice on the Implementation of the Self-examination of the Notarization Income Distribution System'', requiring the notary office to implement the ''Measures on Adjusting and Regulating the Income Distribution of Beijing Notary Institutions (Trial) ''Carry out self-examination on the situation, and make key explanations on violations.

A Notary Public Office found through self-examination that the total account income in 2018 was 41623863.14 yuan, the total performance salary should be 13487158.90 yuan, the actual performance salary was 14799778.50 yuan, and the excess payment was 1312619.60 yuan.

In order to correct the over-issuance situation, Notary A issued a notice to the over-issuance personnel including Huang, requesting the return of the over-issuance part of the income, but Huang did not return it. Notary A applied for labor arbitration. After that, the labor and personnel dispute arbitration Committee of Xicheng district of Beijing issued a notice of inadmissibility of jingxi labor and labor dispute arbitration [2022] no 69, and decided not to accept the arbitration request on the grounds that it did not fall within the scope of labor dispute arbitration. a notary public filed a lawsuit within the legal time limit, but Huang did not file a lawsuit.

In the lawsuit, Notary A claimed that the amount of excess bonus for individuals with annual income exceeding 600000 yuan was 663500 yuan, the amount of excess bonus for all other personnel was 649100 yuan, the number of people paid was 150, and the average person was excess bonus of 4327.37 yuan. Therefore, Huang was required to refund the excess bonus of 4327.37 yuan.

Judgment point of view: The court of first instance held that, according to relevant regulations, the parties should provide evidence to prove the facts on which their claims are based or the facts on which the other party's claims are based, unless otherwise provided by law. If the party fails to provide evidence or the evidence is insufficient to prove his claim of fact before the judgment is made, the party with the burden of proof shall bear the adverse consequences. In this case, notary office a asked Huang to refund the multiple performance bonuses, but failed to provide evidence on Huang's work performance and the performance bonus payment standard of notary office a. instead, it claimed to return only based on the average amount determined by its own calculation. there was no factual and legal basis, and the court did not support it. Accordingly, the court of first instance decided in July 2022 to reject all claims of Beijing A Notary Public Office.

The court of second instance held that the parties should provide evidence to prove the facts on which their claims are based or the facts on which the other party's claims are based, unless otherwise provided by law. If the party fails to provide evidence or the evidence is insufficient to prove his claim of fact before the judgment is made, the party with the burden of proof shall bear the adverse consequences. In this case, Notary Public Office A appealed that it demanded the refund of the 2017 full-staff performance bonus (I .e. the year-end bonus), and claimed that the full-staff performance bonus was determined to be paid on average according to the operating conditions in 2017 and had nothing to do with performance. Huang said the distribution standard is not clear. With regard to the standard of salary and bonus, the employer, as the setter, whose cost of information disclosure is obviously lower than the cost of the employee's search for the information, should bear the burden of proof, that is, the subjective burden of proof, and should also bear the consequences of the fact that the truth is not clear due to the lack of evidence, that is, the objective burden of proof. A notary office only based on the average amount determined by its own calculation, did not prove to the court the standard of performance bonus payment, the court of first instance did not support its claim to refund the bonus, in line with the rules of proof and the general awareness of the burden of proof, the court maintained. A notarized appeal claims that 77.3 of its employees have voluntarily returned the bonus, which has nothing to do with this case, and the court will not accept its appeal.

Case two:Wang joined A Securities Company on November 22, 2019 as a bond business post at Sinochem Building in Xicheng District. The two parties signed a labor contract with a term from November 22, 2019 to December 31, 2020, and a term from January 1, 2021 to December 31, 2021. It is agreed that Wang mou will work in the bond business and the work department will be the headquarters of the bond business. Labor remuneration is based on job responsibilities, mainly based on work performance, and a monthly salary system is implemented. The salary structure, payment method and time shall be implemented in accordance with the company's salary system, under the condition of providing normal labor and passing the performance appraisal, the monthly salary shall not be less than 15040 yuan, and the probation period shall not be less than 80% of the above monthly salary standard; A Securities Company shall determine Wang's salary after performing performance appraisal on Wang's actual work according to the rules and regulations; The salary of the current month shall be paid in monetary form before the 26th of the following month, and shall be paid by bank transfer.

On August 17, 2021, Wang issued a "Notice of Dissolution of Labor Contract" in the form of an e-mail, which read, "As the Company has not paid my labor remuneration in full since June 2021, I hereby notify the Company to terminate the labor contract relationship and ask the Company to arrange for personnel to hand over the work to me as soon as possible. Please handle my resignation procedures in a timely manner, issue a certificate of termination of the labor contract relationship, settle my salary and remuneration, and ensure that my salary and remuneration, social security and provident fund are paid to the date when the company issues the certificate of termination of the labor contract relationship to me".

In September 2021, Wang applied for labor dispute arbitration, requiring A Securities Company to pay economic compensation for the termination of the labor contract, unpaid wages, unpaid annual leave wages, as well as issue a certificate of termination of the labor contract, for social insurance transfer procedures. On December 8, 2021, the labor and personnel dispute arbitration Committee of Xicheng district of Beijing issued ruling no 4957 [2021], ruling that securities company a should pay Wang mou the salary difference of 35333.34 yuan from January 1 to July 31, 2021, economic compensation of 43355.54 yuan for termination of labor contract, salary of 12027.59 yuan from August 1, 2021 to August 17, 2021, and salary of 7624.72 yuan for annual leave in 2020. securities company a should issue a certificate of termination of labor contract for Wang mou, reject Wang's other arbitration claims. A Securities Company filed a lawsuit against the arbitration award.

A Securities Company said that after verification, the monthly salary standard at the time of entry is a fixed salary of 15040 yuan, a monthly performance salary of 3760 yuan and other payable items of 2000 yuan, all of which are fixed. Starting from 2021, two new parts of wages will be added, namely, transportation subsidy of 400 yuan and full-time wage of 600 yuan. Starting from January 2021, Securities Company A stopped issuing 2000 yuan of other payable items in Wang's salary. A Securities Company claims that the 2000 yuan is Wang's special allowance, which will only be enjoyed in 2020, so it will stop paying it from January 2021. The special talent allowance is an oral agreement and is displayed in the OA system. In this regard, A Securities Company submitted an "application for headquarters employment", showing that "the application department's bond business headquarters, the applicant Jiang Jingpan, is to be employed by Wang Mou; Based on the post competency evaluation and grade (salary grade) proposal, special allowance is paid due to the relatively high fixed salary of the person to be employed. The monthly salary consists of a fixed salary special allowance, of which the fixed salary is 18800 yuan per month, special allowance 2000 yuan per month; The special allowance will be paid from the month of entry, normally until December 31, 2020 (the contract period is until December 31, 2020), and will be adjusted according to the completion of the target. Special allowance is an advance bonus, which shall be deducted from the corresponding amount in the bonus accounting at the end of each year". Wang did not approve of the authenticity of the evidence, saying that A Securities Company had never informed that the special allowance was an advance bonus, and that the employment application process did not go through Wang, who was unaware of the advance bonus and the payment period.

Referee's point of view: The court believes that the employer should pay the laborer in full and on time in accordance with the labor contract and national regulations. A Securities Company claims that its company will stop issuing "other payable 2000 yuan" every month based on an oral agreement with Wang Mou to enjoy the special allowance only in 2020, which Wang Mou does not approve. However, the "headquarters employment application" submitted by A Securities Company cannot confirm that both parties have reached the above agreement on the payment of the money or have informed Wang Mou; A Securities Company claimed that its company had reduced Wang's salary according to the rules and regulations, but did not submit relevant evidence that had delivered or informed Wang of relevant performance appraisal documents, salary adjustment plan and appraisal process and results, and there was no evidence that both parties had reached an agreement on salary adjustment. Therefore, A Securities Company stopped paying "other payable 2000 yuan" in Wang's salary and reduced Wang's salary, all lack sufficient basis.

Lawyer's Analysis: According to the above cases 1 and 2, it can be seen that it is difficult to require employees to return the advance bonus when the employer cannot prove that it has reached an agreement with the workers on the payment and return of the advance bonus.

Article 27 of the Labor Dispute Mediation and Arbitration Law stipulates that the limitation period for applying for arbitration of labor disputes is one year. The limitation period for arbitration shall be calculated from the date when the party knew or should have known that its rights had been infringed. The limitation of arbitration provided for in the preceding paragraph shall be interrupted when one of the parties claims rights from the other party, or requests relief from the relevant authorities, or the other party agrees to perform its obligations. The limitation period for arbitration is recalculated from the time of interruption. If, due to force majeure or other justifiable reasons, the parties are unable to apply for arbitration within the limitation period for arbitration provided for in paragraph 1 of this article, the limitation period for arbitration shall be suspended. The period of limitation for arbitration shall continue to be calculated from the date when the cause for suspension of the limitation period is eliminated. If a dispute occurs due to arrears of labor remuneration during the existence of the labor relationship, the laborer's application for arbitration shall not be subject to the limitation period of arbitration stipulated in the first paragraph of this article; however, if the labor relationship is terminated, it shall be filed within one year from the date of termination of the labor relationship.

According to the above provisions, the limitation period for applying for arbitration of labor disputes is one year. The limitation period for arbitration shall be calculated from the date when the party knew or should have known that its rights had been infringed. If the worker clearly states that he will not refund the advance bonus, the date is the date on which the employer knows or should know that his rights have been infringed, and he shall apply for labor arbitration within one year from that date.