There are many disputes over the identification of labor relations on the platform
reading tips
The top ten typical cases of labor disputes released by the Chongqing High Court show that labor disputes caused by the employment of new formats are frequent, and whether there is a labor relationship between platform practitioners and operators is controversial.
In the actual trial, the court needs to make a substantive judgment based on the facts of the case and the constituent elements of the labor relationship as to whether there is a labor relationship.
The Chongqing Higher People's Court recently released ten typical cases of labor disputes.
"Harmonious and stable labor relations are the 'barometer' and 'wind vane' of harmony and stability in modern society." Li Shenglong, vice president of the Chongqing Higher People's Court, said that these cases have distinct characteristics of the times and reflect the latest trends in the trial of current labor dispute cases .
On April 24, the reporter learned from the Chongqing Higher People's Court that the number of labor and personnel dispute cases accepted and concluded by Chongqing courts in 2021 is the first positive increase after reaching a peak in 2016 and declining year by year, and the increase is significant.
Labor disputes caused by the employment of new business formats are frequent; the demands of laborers are complex. After disputes occur, laborers often put forward multiple demands with the mentality of giving it a try, and the phenomenon of irrational lawsuits is more prominent.
Labor disputes frequently occur under the employment of new formats
At present, new employment models such as "shared employment" and "platform employment" with the background of "Internet +" have emerged in large numbers, and whether there is a labor relationship between platform practitioners and operators is controversial.
"Whether there is a labor relationship requires a substantive judgment based on the facts of the case and the constituent elements of the labor relationship." Li Shenglong said.
A case released on the same day showed that in October 2018, Li signed an "Intra-City Delivery Service Contract" with an express company in Chongqing, and Jiang registered as a rider through an intra-city knight app to provide takeaway delivery services for restaurants operated by Li. .
The express company transferred the labor remuneration to Jiang's registered APP account by bank transfer, issued orders to grab orders through the WeChat group, and purchased employer liability insurance for Jiang.
After the dispute between the two parties, Jiang filed a lawsuit after arbitration, requesting to confirm that he has a labor relationship with the express company.
The Chongqing No. 1 Intermediate Court held that Jiang accepted the assignment of the express company to provide takeaway delivery services for the restaurant operated by Li.
As a worker who passively accepts labor remuneration, he cannot decide who actually pays remuneration and who takes out employer liability insurance.
Under the employment model of the Internet platform, although the working hours and working locations of the workers are relatively flexible, the two parties have a personal affiliation. Therefore, Jiang claimed that there is a labor relationship between him and the express company, which should be supported.
It is also a labor dispute between a platform practitioner and a platform operator. In another dispute between an online anchor and an advertising media company, the court ruled that the labor relationship between the two parties was not established.
In September 2018, Xu signed the "Host Brokerage Contract" with an advertising media company, which stipulated that Xu signed an artist for the company, and the work content is to perform performing arts activities through the Internet (YY platform) or public places, and the monthly guaranteed income is 4,000 yuan. The commission amount is 60% of the income generated.
During the contract period, Xu may not entrust an agent, manager, broker or other company or individual engaged in similar work to represent Xu's related performing arts activities.
After the contract was signed, Xu made a live broadcast on the platform.
In March 2019, Xu applied to an advertising media company for resignation on the grounds of arrears in wages and failure to pay social security in accordance with the law.
After the arbitration, Xu filed a lawsuit, requesting an advertising media company to pay economic compensation.
The judge pointed out that if an online anchor is packaged by a brokerage company, registers itself on a third-party live broadcast platform, conducts online live broadcast activities, and obtains income from the third-party live broadcast platform, the network anchor and the brokerage company should establish an equal civil subject based on the brokerage contract. Contractual relationship, it is not appropriate to identify the existence of labor relationship between the two parties.
Concealing the fact of disability does not affect the establishment of labor relations
In June 2018, Wu, a security guard of a property company in Chongqing, fainted at work and died after rescue efforts were unsuccessful.
The property management company sued for confirmation that there was no labor relationship between the company and Wu from January 10, 2016 to June 30, 2018.
The reason is that Wu had been identified as a third-degree disabled person and completely lost his ability to work, and he concealed this fact when he signed the "Employee Employment Contract" with the property company.
The judge of the Chongqing No. 4 Intermediate Court held that: Wu did not truthfully inform himself of his basic situation when he joined the job, and the issue had a direct impact on the property company's judgment on whether to establish a labor relationship with Wu. Wu constituted fraud, and the "Employee Employment Contract" signed by the two parties was invalid. .
However, whether there is a labor relationship between the two parties should be judged according to whether the requirements for establishing a labor relationship are met.
The court held that although Wu was identified as a third-degree disability and completely incapacitated, he had been engaged in security work in a property management company from January 2016 until his death, and the property company could not prove that Wu was not competent for the job. work, and our laws do not prohibit persons with disabilities from engaging in work commensurate with their abilities.
During Wu’s work, a property management company paid labor remuneration to Wu, and was under the management of the property management company. The two parties met the characteristics of establishing a labor relationship, so the property company’s appeal was not supported.
In another case, due to insufficient evidence, the party's claim to determine the labor relationship was not supported.
Li is the daughter of the legal representative of a training center in Yongchuan, Chongqing.
In order to pay social insurance, Li filed a lawsuit after arbitration, requesting to confirm that he has a labor relationship with the training center from April 20, 2019 to June 25, 2021.
The judgment of the Yongchuan Court held that: the evidence submitted by Li and the training center was contradictory or illogical, and the evidences could not be mutually verified and could not form a chain. Therefore, the appeal of Li's request to confirm the existence of a labor relationship with a training center was not accepted. support.
"The purpose of confirming the labor relationship between the plaintiff and the defendant is only to make up the payment of social insurance, which involves social and public interests. It should be determined whether the labor relationship exists based on the evidence presented by both parties." The trial judge pointed out.
Serious violation of epidemic prevention and control regulations can be dismissed
Wang is a nurse in a tertiary hospital in Jiangbei District, Chongqing.
After the outbreak of the new crown pneumonia epidemic in 2020, the hospital issued a series of work instructions on personnel management during the epidemic prevention and control period through WeChat work groups for many times.
On March 21, 2020, Wang left the main city of Chongqing without reporting in advance as required and went to a town outside the city.
On April 7, 2020, the hospital notified Wang to terminate the labor contract on the grounds that Wang had seriously violated rules and regulations and labor discipline.
After the arbitration, Wang filed a lawsuit, requesting the hospital to pay compensation for the illegal termination of the labor contract.
The court ruled that, as a large medical institution, the stricter epidemic prevention and control measures and personnel control instructions formulated by the hospital during the critical period of epidemic prevention and control were the performance of the hospital in fulfilling its important social responsibilities during the special period, and the medical staff of the hospital should Strictly follow.
As a medical worker, at an important moment of epidemic prevention and control, Wang left the work station without approval and filing, which seriously violated the epidemic prevention and control measures and personnel control instructions issued by the unit during the epidemic prevention and control period.
It is legitimate for the hospital to terminate the labor contract with Wang, so it does not support Wang's claim that the hospital should pay compensation for the illegal termination of the labor contract.
Li Guo