China: Admissibility Of We Chat Messages In Overtime Pay Disputes (I)

Last Updated: 8 January 2018
Article by Sam Tang

Taiwan's United Daily News reported on 12 March 2017 on the first arbitration case in Taiwan (New Taipei City) involving social media messages. In this case, the employer sent messages after working hours to an employee, assigning work duties to him via Line (an interactive social media platform used widely in Taiwan, similar to WeChat in China). 

In these messages, the employer: (a) required the employee to forward a notice to other employees; and (b) assigned rather complicated tasks to the employee to handle. The employee claimed for overtime pay. 

The arbitration commission heard the case, and held that: (a) for each time the message was forwarded, 1 minute of overtime work will be calculated; and (b) as the employee presented a complete evidentiary record proving that the employer assigned complicated tasks to him after working hours (and the employer recognized the same), the duration of the employee's overtime work started from the moment he received the message until he replied stating that the work has been completed. Based on this calculation formula, the total overtime work covering both items mentioned above came up to 1,365 minutes, and the arbitrator thus ordered the employer to pay the corresponding overtime wages to the employee.  

In the same month, the Shanghai Jing'an District People's Court also adjudicated a labor dispute case involving a similar situation. In this case, the employee Xu claimed overtime pay from the employer and presented WeChat screenshots supporting his claim. The court ultimately admitted such WeChat messages as evidence and supported Xu's claim for 83 hours of overtime work. The court ordered the employer to pay overtime wages to Xu totaling RMB 5,724, calculated based on his base monthly salary of RMB 8,000. 

In recent years, various instant messaging platforms have emerged with the advancement of mobile Internet technology, offering increased convenience to inter-personal communications and exchanges. These platforms have also enabled employers to manage their employees in more diverse and flexible ways. Many employers have become accustomed to assigning work duties to their employees via WeChat and other instant messaging platforms. However, if employers neglect the legal risks with means of communication, they could find themselves in a very passive position if and when disputes arise. 

In order to provide a useful reference to our clients for managing legal risks, we retrieved from China Judgments Online 60 labor dispute judgments nationwide involving the admission of WeChat messages as evidence, and distilled the following principles regarding the admissibility of such evidence.

I.     Examination of the relevance of WeChat messages

When examining evidence, courts must assess the relevance of the WeChat messages in the overtime work claim. China adopts a unique requirement in labor dispute cases, whereby employers must bear most of the – if not the entire – burden of proof. 

With respect to the burden of proof in disputes involving overtime pay, Article 9 of the Interpretations of the Supreme People's Court on Several Issues Concerning the Applicability of the Law in Labor Dispute Cases (III)1 stipulates that "... if the employee claims for overtime pay, he shall bear the burden of proof to prove his overtime work; however, if the employer possesses evidence that could prove the employee's overtime work but refuses to provide it, the employer shall bear all potential adverse consequences arising as a result thereof". In this connection, if an employee claims that his employer has underpaid or failed to pay for his overtime work, he will assume the prima facie burden of proof to prove such work.  

1.     Time of receipt of the WeChat messages

If an employee claims for overtime pay covering a certain time period, he is obligated to provide prima facie evidence proving his overtime work during such time period. If the WeChat messages were received earlier or later than the said period, it is less likely that the employee's claim for overtime pay would be supported by the court. 

In the case (2016) Suzhou 0106 First Instance Civil Case No. 3923, the employee Lan provided a WeChat message to prove the employer's request to work overtime until 9 pm. However, the WeChat message was only received on 19 January 2016 while Lan claimed overtime pay for the entire year of 2015. The court held that the WeChat message allegedly proving his overtime work has no retrospective effect, and thus could not be admitted as evidence to prove his claim for overtime work for the whole of 2015. 

2.     The WeChat messages must describe the overtime work

(1)     The courts are less likely to recognize ad hoc work-related talks by the employer with the employee after working hours as overtime work. In this connection, we suggest that employers pay careful attention to the time and wording when sending WeChat messages to their employees, in addition to having well-established overtime work approval policies. 

In the case (2015) Shenzhen Futian District People's Court 4th Civil Division First Instance Civil Case No. 1123, the court held that, where an employee claims for overtime pay, he bears the burden of proof to prove his overtime work. However, the WeChat messages adduced by the employee – which merely showed that both sides talked outside of working hours about work reports and work arrangements – could not be admitted as evidence to prove his overtime work. The employee did not submit any evidence proving that the employer adopted an attendance record system. In other words, he was unable to prove that the employer possessed, but declined to produce, the proof of his overtime work. As the employee failed to submit solid evidence to support his claim for overtime work, he was thus obligated to bear the adverse consequences. The court ultimately dismissed his claim for overtime pay. 

In the case (2015) Xuzhou 5th Civil Division First Instance Civil Case No. 91, the parties agreed in the employment contract that, if Zhao requests to work overtime, he is required to first submit a written application and obtain the employer's prior written approval; otherwise, such work would not be regarded as overtime work. However, Zhao failed to provide such written application or approval, and the WeChat messages he provided merely showed work-related communications and exchanges with the employer's legal representative. The court held that such messages were inadmissible as evidence to support his claim for overtime pay. Therefore, the court ultimately ruled that Zhao's claim for overtime pay – calculated based on the WeChat messages and the sent/receipt time of emails – lacked legal basis, and was not supported. 

In the case (2016) Inner Mongolia 0203 First Instance Civil Case No. 2123, the employee Nie provided WeChat messages of his conversations with, among others, the HR Manager on 9 May 2015, the General Manager on August 29, the Engineering Department Manager on September 5 and 6, Manager Liu on March 22 and 28, the Property Manager on October 25, and with Manager Liu again on May 10, May 31, June 7, June 13, June 14, June 20, June 27, September 3, September 5 and September 10. However, the court held that such messages could not be recognized as direct evidence proving his overtime work. In addition, Nie failed to provide solid evidence proving that the employer possessed evidence that could prove his overtime work. Nie's claim for overtime pay was ultimately rejected by the court. 

In the case (2016) Beijing 0108 First Instance Civil Case No. 3537, the court held that QQ messages, WeChat messages and other evidence provided by Deng could only prove the fact that the communications were work-related. However, they did not prove that Deng worked on weekends and statutory holidays. As such, his claim for overtime pay was not supported by the court due to a lack of factual basis.

(2)     If the WeChat messages show that the employer's person in charge or department head required an employee to work overtime, the employee will be deemed to have fulfilled the prima facie burden of proof.

In the case (2016) Beijing 01 Final Civil Case No. 6762, the court held that, according to the WeChat messages submitted by Yang, it was the person in charge of the employer who requested Yang to work overtime and such evidence could be used to prove his overtime work. Based on the evidence provided by Yang, the court found that Yang had discharged the prima facie burden of proof to support the overtime pay claim. On the contrary, while the employer should possess Yang's attendance record, it failed to provide any evidence of Yang's attendance or the existence of overtime work, and was required to assume the adverse consequences. The employer did not provide any evidence of its actual implementation of the internal rule that an employee must file an application to work overtime or sufficient evidence to overturn Yang's assertion of having worked overtime. As such, the employer's defense was not supported by the court.

It is vital for employers to establish an attendance system, record their employees' attendance in writing, and verify such records with them on a monthly basis (and have the employees sign off on such records). In the case (2016) Suzhou 0106 First Instance Civil Case No. 3015, the attendance record submitted by the employer did not contain the employee's signature. Consequently, the court did not admit the attendance record as evidence. The WeChat message sent by the employee to the shop manager (as provided by the employee) read "Manager, I worked overtime for 10.5 hours today, 2.5 hours more than expected". It was sent on New Year's Day (1 January 2016), which was quite timely and persuasive. Although the manager did not reply on the same day, the court still held that it was sufficient to prove that the employee worked overtime for 10.5 hours based on a high probability. As such, the overtime worked undertaken by the employee on that day was held to be 10.5 hours.

3. If the WeChat messages do not identify the person who requested the employee to work overtime, it would be difficult to ascertain the existence of such overtime work.

In the case (2015) Shenzhen Futian District People's Court 4th Civil Division First Instance Civil Case No. 1123, the court held that the employee claiming for overtime pay should bear the burden of proof regarding the existence of such overtime work. The audio-recording and WeChat messages submitted by the employee could not prove that the counterparty in the dialogue was his supervisor, and thus his claim was not supported.

In the case (2016) Beijing 0112 First Instance Civil Case No. 34767, the employee claimed for overtime pay for work performed after working hours on working days as well as on weekends and statutory holidays. However, the employee only provided copies of the relevant evidence and WeChat messages, but not the originals. Moreover, the person who communicated with the employee could not be identified from the WeChat messages. The alleged overtime work could not be ascertained merely from the WeChat messages; in other words, the employee failed to provide sufficient evidence to prove the existence of overtime work and thus should bear the legal consequences arising from the failure to discharge the burden of proof. As such, the employee's claim against the employer for overtime pay was not supported by the court due to a lack of factual basis.

In the case (2015) Pudong 1st Civil Division First Instance Civil Case No. 11474, the employee provided some WeChat screenshots from a WeChat group to prove overtime work on working days and weekends. However, the employer denied this and asserted that it had never set up any official WeChat group. The employer also denied the identity of the persons in the WeChat messages as alleged by the employee. Such WeChat messages were not corroborated by any other evidence submitted by the employee, and were thus not admitted as evidence by the court.

(To be continued)

Footnote

1     Effective as of 14 September 2010. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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