Nine Grade Disabled Employee Defends 3 Years To Recover 160 Thousand

Article tenth of the labor contract law stipulates that the employer shall conclude a written labor contract with the laborer within one month from the date of his employment. Liu Yunxiang entered a labor service company in Nanchong, Sichuan, and worked as a carpenter for 16 days.

At first, the company wanted to subsidize his 3 month salary and the subsequent operation cost of 23 thousand and 500 yuan. Unexpectedly, he also asked to pay two times the wage difference without signing a written labor contract. Since the arbitration and the court held that their work had not been more than one month, the employer could not sign the labor contract, so the result of the referee did not support his request.

Later, Liu Yunxiang was identified as a work-related injury and achieved. Grade nine disability standard 。 So he asked the company to pay the disability allowance and so on. However, because of the judgment before, that is, the case of two times wage difference is very disadvantageous to him, and the lawsuit is relatively passive. However, with the help of lawyers from the legal aid and research center of Beijing's sincere public welfare migrant workers, he became disadvantaged and took the initiative. After more than 3 years of hard work, he finally got 166428.67 yuan disability allowance and the cancellation of labor relations compensation in March 17th.

Liu Yunxiang, 36, is a member of Taihe County in Anhui province. In April 10, 2013, he did a good job in carpentry. He applied to work in the construction company in Beijing. The site was located near the Dahongmen police station in Fengtai District. The company did not sign a labor contract with him, and agreed to pay 200 yuan daily.

In April 26, 2013, when Liu Yunxiang worked for 16 days, he accidentally fell off the 2 meter high steel pipe rack. His colleagues rushed him to the hospital for treatment. The result of the diagnosis is: the fracture of the left tibia needs internal fixation.

In May 27, 2013, he discharged the hospital. In the past 3 days, the head of the company and team has signed an agreement with his wife, which grants him 3 months' salary and a total of 23 thousand and 500 yuan for medical treatment. At the same time, it is agreed that any expenses that occur later are not related to the company.

In April 29, 2014, he was hospitalized again for internal fixation removal surgery, and was discharged in May 5th of the same year. The hospital issued a sick leave certificate until July 6, 2014.

In April 17, 2015, he was identified as a work-related injury. In September 29th of the same year, it was recognized as the 9 grade of work-related injury disability level. Liu Yunxiang said he was very unlucky. When he first arrived at the unit for more than half a month, he broke his leg. He didn't earn any money for his life. The injury had caused him great pain, but the company gave him a little money and asked him to feel more cold.

Liu Yunxiang, a lawyer who provided legal aid to him, said that in this case, the right thing to do is to confirm the existence of labor relations with the company, and then to identify the work-related injuries, and then to seek compensation for work-related injuries. stay Labor relations In terms of identification, labor relations were successfully identified as a result of the signing of a one-off work-related injury agreement between the two sides. This step laid the foundation for his work injury identification.

However, he was in trouble when he got the medical record at the hospital. After two trips, the hospital did not give him. The lawyer solved the problem by finding the person in charge of the hospital and asking not to give the case to complain to the Health Bureau. At that time, Liu Yunxiang's two times wage case was very difficult. The company said that because there was only a total of 16 days for labor relations between the two parties, there was no need to sign a labor contract because there was no more than one month, and there was no problem of paying two times the difference in wages.

The view of the company is not only supported by arbitration, but also from the first instance to the second instance. The reason for arbitrators and judges is: "Liu Yunxiang did not work again after injury, and there was no salary. Of course, there was no double wage gap." Although he was later identified as a work-related injury, he was in an abnormal state of employment with the unit during the period of treatment and application for industrial injury. Therefore, he did not conclude that the labor contract could not be fully attributed to the employer.

In response to this, the lawyer suggested that all work-related injuries were suspended. During the period of suspension of wages, employers should pay wages to labourers. Therefore, there is no problem that employees do not sign the labor contract double wage gap because of no wages. In addition, the signing of a labor contract with employees is the responsibility and obligation of the employing unit. The employer's responsibility for signing a labor contract in violation of the labor contract law can not be attributed to Liu Yunxiang. Despite the lawyer's argument, the court of second instance still ruled that the company did not need to pay Liu Yunxiang two times the wage difference of the labor contract.

Liu Yunxiang's case of two times wage gap has not been supported, which has a great negative impact on his work injury compensation case: first, when is the time for the termination of labor relations between the two sides? What is the time limit for the suspension of wages and salaries? Three, what is the basis of the compensation standard for work injury in the year of two? Wage level ?

In the face of difficulties, the lawyer took the two adjudication that had already come into effect and read it word by word, and finally decided to seek a breakthrough from one paragraph. The sentence of this judgment is: "when the effective judgment has confirmed the existence of labor relations between the laborers and the employing units, the employing units should actively communicate and negotiate with the workers who are not on duty, and resume their normal employment status in a timely manner." That being the case, the company did not restore Liu Yunxiang's normal employment status in time, and the responsibility went to the company.

So, the lawyer decided to lock Liu Yunxiang's focus from three aspects:

First, confirm the two sides. Labor relations The duration of existence.

In the debate, it is necessary to refute the argument that there is only 16 days' labor relationship between the two parties. It is clear that after the establishment of the labor relations between the two sides, the labor relationship has been legally established in the absence of termination or termination by the two parties. At the same time, it is explicitly stated that under the condition of industrial injury, only the laborers have the right to propose the termination of labor relations, and the employing units have no right to terminate labor relations with Liu Yunxiang. In November 2, 2015, the Beijing based office which registered with the company's industrial and commercial registration and registered in the housing and Urban Rural Development Committee of the city, issued a notice of the termination of labor relations by express. Thus, the duration of the labor relations between the two parties will be fixed from April 10, 2013 to November 2, 2015.

The two is to do enough homework during the period of suspension of salary.

Article thirty-third of the regulations on industrial injury insurance stipulates that workers need to suspend work and receive medical treatment for occupational injuries because they are injured by accidents or suffer from occupational diseases. The lawyer said that in the court trial, it is important to point out that the suspension period is the special protection of the state for the injured workers, and no unit or individual has the right to cancel the period of suspension. During the period of suspension of wages, the unit must pay wages in the period of suspension. According to Liu Yunxiang's injury, the suspension period should be 6 months.

The three is to emphasize that the unit does not arrange Liu Yunxiang's work in accordance with the law, so it should pay the basic living expenses and sick wages during the period of unscheduled work. On the basis of the cognizance of the previous court of second instance, the lawyer emphasized that after Liu Yunxiang was injured and discharged from hospital, the company took a very irresponsible attitude, not only refused to shoulder the responsibility for work-related injuries to employees, but even denied the fact that there existed labor relations between the two sides, and did not arrange their work. For this reason, the company should pay the living expenses and wages during the sick period when Liu Yunxiang did not arrange the work.

Due to adequate preparation, the Arbitration Commission was persuaded and decided in accordance with the facts of the case: the company paid Liu Yunxiang a one-time disability allowance, a one-time medical grant, a one-time disability employment subsidy, and meals allowance during hospitalization. At the same time, it also supported Liu Yunxiang's salary of stopping wages and wages, and the total cost of living and working during the unscheduled period, totaling 163340.21 yuan.

Considering that the company refused to accept the ruling, Liu Yunxiang immediately prosecuted the lawyer. In the first instance, the lawyer continued to argue for it, and accurately calculated the compensation for work injury that Bibi should receive by Liu Yunxiang. The result of the first instance judgment was 166428.67 yuan, 3088.46 yuan more than the arbitration award.

The next second trial was carried out by lawyers, which eventually brought the court of second instance to trial.

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