The Effectiveness of Data Message Evidence in Labor Disputes

Company A notified Ms. Chen on dissolution of labor contract for her absenteeism. Ms. Chen filed to Labor Arbitration Committee, and claimed that she had asked for leave for those said absenteeism, so Company A should pay economic compensation for its illegally dissolution of labor contract. For Chen’s claim, Company A provided the notarized screen shots of Chen’s weibo and blog, in which the photos’ date were different from those days she asked for leave. Finally, Labor Arbitration Committee rejected Chen’s request.

In the past, for labor disputes, data message evidence are the records between employees and employers in work, mainly including e-mail, text message, attendance records, OA system records. However, in the recent years, with the development of social networking, employees have more new tools to disclose their personal information, mainly including: social networking tools, such as micro-blog, blog, wechat, bbs and etc.; online consuming tools, such as online shopping, online booking and etc.. In this case, Chen discloses the time and location of tourism in her blog, which is the typical social networking evidence. Under other circumstances, such as online booking tickets for airplane or train, which can be used to define who and when take the airplane or train, these are the typical online consuming evidence. In order to manage employees and deal with such labor disputes more effectively, employers can legally collect those information in advance.

Then how could the employer legally obtain and save data message evidence?

Firstly, as the new data message may involve some personal information, employers shall be aware of those restrictions on the protection of personal information. For example, “Decision on Strengthening Online Information Protection”, Article 1, “…… All organizations and individuals may not obtain electronic personal information of citizens by theft or any other illegal means……” Therefore, employers can obtain personal information disclosed by employees from public channels.

Secondly, according to “Electronic Signature Law” Article 4, “Any data message that can show the contents it specifies in material form, and may be picked up for reference and use at any time, shall be regarded as complying with the written form as prescribed by laws and regulations.” So data message evidence shall have 3 elements: being picked up for reference and use at any time; being the original content; being capable of identifying the time when created. So for these new data message which maybe deleted or amended at any time, it would be better for the employers to notarize such evidence in time.