China: Admissibility Of WeChat Messages In Overtime Pay Disputes (II)

Last Updated: 8 January 2018
Article by Sam Tang

Please see Part I here: Admissibility of WeChat Messages in Overtime Pay Disputes (I)


II.      Determining the authenticity of WeChat messages


Article 10 of the Provisions of the Supreme People's Court on Evidence in Civil Proceedings1 provides that evidence submitted to the people's court must be in its original form; paragraph 4 of Article 69 thereof also provides that a copy that could not be verified against the original cannot on its own serve as the basis for ascertaining any fact. If the employee is unable to provide the "original copy" of the WeChat messages, it will be difficult to pass the court's "authenticity" review.

For example, in the case (2014) Shenzhen Futian District People's Court 4th Civil Division First Instance Civil Case No. 1207, the court held that the authenticity of the WeChat screenshots submitted by the employee Nie was not acknowledged by the employer. In addition, as requested by Nie, the court obtained relevant evidence from Shenzhen Tencent Computer Systems Co., Ltd. and China Mobile Communications Group Network Co., Ltd., Shenzhen Branch, which showed that the related WeChat account was used by the employer's officer Wang. However, as Tencent could not provide the contents of the WeChat messages, they were not admitted as evidence by the court. Nie failed to submit valid evidence to prove the employer's use of WeChat messaging for attendance purposes or the existence of his overtime work, or any evidence proving that the employer had proof of his overtime work. As Nie failed to discharge the burden of proof, his claim for overtime pay was not supported by the court.


III.      Whether WeChat messages are corroborated by other evidence


Electronic data can easily be altered or fabricated. Therefore, the courts apply stricter rules when examining and ruling on their admissibility. The evidentiary value of electronic data can be effectively enhanced if they are corroborated by other evidence. As a form of electronic data, WeChat messages are easily admitted by the court as evidence if they can form a chain of evidence with other evidence.

In the case (2016) Beijing 03 Final Civil Case No. 8536, the first instance court found that, regarding the employee Li's claim for overtime pay for work performed after working hours and on weekends, a complete chain of evidence was formed. The meeting/training notices, reports, Didi car hailing records, and WeChat payment records submitted by Li (who works as a training assistant) were corroborated by his job description, proving that he had actually been working after normal hours and on weekends. Moreover, the employer also admitted this fact and claimed to have already granted compensatory leave to Li, but later denied the same. The employer neither gave a reasonable explanation for its conflicting statements nor submitted any evidence against Li's claim. Therefore, the court supported Li's claim for reasonable overtime pay for work performed after working hours and on weekends.

Li appealed on the ground that the duration of the overtime work as ascertained by the first instance court was shorter than in actual fact. The second instance court found that Li should bear the burden of proof to prove the actual duration of the overtime work as alleged. Upon examining the evidence, the second instance court found that some of the overtime work allegedly performed by Li was evidenced by training notices and reports. However, the rest was not sufficiently documented as Li merely submitted Didi car hailing records, WeChat payment records, WeChat screenshots, etc. The second instance court thus found that it was not improper for the first instance court to reject the overtime work claimed by Li for which he merely submitted car hailing records or WeChat messages without any other evidence. As such, the second instance court confirmed the amount of the overtime pay as calculated by the first instance court.


IV.     How to determine the specific duration of overtime work as evidenced by WeChat messages


In judicial practice, where WeChat messages have prime facie proved the existence of overtime work, the next step of determining the specific duration of such overtime work becomes a key issue. The case in New Taipei City as mentioned in the opening paragraph of this article shed some light on this issue. At present, courts in Mainland China mainly have the following opinions in dealing with this issue:

1.      Where the employer requests an employee via WeChat to work during a specific period, the entire period will be calculated as the duration of the overtime work

In the case (2015) Huangpu 1st Civil Division First Instance Civil Case No. 9477, the employee Nie submitted to the court some WeChat messages showing that the employer requested him via its WeChat group to work overtime on 13 December 2014 (Saturday) (Nie was off work at 7:26 pm), from 10 am to 6 pm on 20 December (Saturday), and 21 December (Sunday). Later, Nie promised the employer that he would notify other employees to work overtime on 14 December (Nie was off work at 5:55 pm) and the employer confirmed it. The employer also requested the employees to work overtime on the following days: 18 November 2014 (Tuesday) and 20 November (Thursday) (2 hours on each day), 15 December (Monday) (Nie was off work at 9 pm), 16 December (Tuesday) (Nie was off work at 9:30 pm), 17 December (Wednesday) (Nie was off work at 9 pm), 18 December (Thursday) (Nie was off work at 10 pm), and 26 December (Friday) (Nie was off work at 10 pm).

Based on the above, the court found that, for work performed on weekends as mentioned in the WeChat messages, although it was denied by the employer, the audio-recording provided by Nie proved otherwise. Therefore, the court ascertained the fact that Nie worked on weekends. Nie further claimed that he worked 8 hours every weekend during his employment but did not submit any evidence. As a result, such claim was rejected by the court. The court held that, based on the evidence submitted by Nie, he worked overtime for 6 weekends for a total of 40.5 hours. The WeChat messages submitted by Nie also proved that he worked overtime on working days as well as such records did reflect the employer's intent to push its employees to work harder, more efficiently and during non-working hours. As a result, the court ascertained the fact that Nie also worked overtime on normal working days. Nie further claimed that he worked 2.5 extra hours daily on working days during his employment. As he did not submit any evidence on this point, such claim was rejected by the court. The court determined, based on the evidence submitted by Nie, that he worked overtime on 7 working days for a total of 19 hours. Accordingly, the employer was required to pay Nie based on his normal salary for the ascertained overtime work.

2.      The duration of overtime work must be reasonably determined where the employer did arrange for overtime work but the WeChat messages did not show the specific duration

In the case (2016) Beijing 01 Final Civil Case No. 110, the court found that, according to the WeChat messages, the employer's officer Zhao did ask the employee Gao to meet him at China Central Place at 1:30 pm on 22 June. The audio-recording of Gao's conversation with the employer's HR director also mentioned that Zhao asked Gao to go to China Central Place on 22 June. However, since the appointment time shown on the WeChat messages was 1:30 pm, Gao's claim for 1 day of overtime work lacked a factual basis. As a result, the court ascertained that Gao only worked overtime for half a day on 22 June.

3.      The overtime pay claim will not be supported if there is no evidence to prove the actual duration of the overtime work, even if the WeChat messages prove the fact of such work

In the case (2016) Beijing 02 Final Civil Case No. 9583, the WeChat messages retrieved from the employee Wang's mobile phone showed the starting time of the overtime work performed on 14, 21 and 26 August 2015. However, no specific duration was mentioned in these messages. The court was told by the employer that its working hours were from 8:30 am to 6 pm. Both parties agreed that no attendance check was required for Wang's work position.

Based on the WeChat messages submitted by Wang and the employer's standard working hours, the court ascertained that he worked overtime during his employment. However, the specific duration of such overtime work cannot be determined based on the evidence submitted by Wang. Therefore, the court found that Wang's claim for RMB 5,241.46 as overtime pay lacked evidence and rejected his claim.


V.      Analysis of problems when the employee is subject to a special working hours system, even if there are WeChat messages showing that the employer arranged for work outside the standard working hours


If an employee is subject to a special working hours system, whether overtime pay should be awarded is determined on a case-by-case basis even if there are WeChat messages showing that the employer has arranged for him to work outside the standard working hours.

For example, in the case (2015) Shunyi First Instance Civil Case No. 18437, the court found that, although the employee Lin submitted photos, printed emails and WeChat messages to prove that he worked on statutory holidays for a total of 14 hours and on weekends for a total of 336 hours, such evidence failed to prove the actual overtime work performed by him. Moreover, Lin was subject to a flexible working hours system.2 Therefore, the court did not support Lin's claim against the employer for overtime pay for work performed on statutory holidays and weekends.

Conclusion

Coming back to Shanghai, if an employee submits WeChat messages proving that he worked overtime but is not able to prove the specific duration of such work, will the labor arbitration commission or court support his claim for overtime pay? If yes, how is the duration of the overtime work calculated? We have consulted several arbitrators and judges for their opinions, and summarized their answers as follows:

1.      If the fact of overtime work is ascertained, they would tend to support the reasonable part of the claim for overtime pay. 

2.      They will take the following factors into consideration when determining the duration of the overtime work:

  • the usual time required by someone to forward the employer's request for overtime work to the employee concerned based on common sense;
  • the usual time needed to complete the required work by consulting with both the employer and employee (please note that, based on the facts of each case, unless proven otherwise, it is inappropriate to calculate the duration of overtime work from the time of receipt of the employer's instructions to the time of completion of the work. Prof. Qiu Junyan from the Law School of Taiwan's Chinese Culture University (PCCU), who was the arbitrator hearing the case in New Taipei City as mentioned in the opening part of this article, also stated that, since the employee is out of the employer's management and supervision after work, he may either work for the employer or attend to private matters from the time he received the instructions for overtime work until the completion of such work. A distinction must be made between these two scenarios);
  • if the employer and employee disagree on the usual time needed to complete the required work, the arbitration commission or court may consult with other relevant employees of the employer in question; and
  • if the employer has a long-standing habit of requesting its employees via WeChat to work overtime, the duration of overtime work will be determined based on the principle of reasonableness at each arbitrator or judge's discretion.

The above opinions are consistent with standard norms and reasonable in practice, which serve as useful reference for employers when using various instant messaging platforms in allocating work to their employees.

Footnotes

1     Effective as of 1 April 2002.

2    Flexible working hours do not have fixed starting and ending points of working time. It is usually adopted for employees whose work cannot be arranged within the standard working hours or within a fixed timeframe due to the nature of production, special work needs or special work duties and thus need to work on a flexible basis.

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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