Admitting bad luck in housekeeping disputes or resorting to law
With the rapid development of the social economy and the continuous improvement of citizens' living standards, the market demand of the housekeeping service industry continues to be released.
Everyone hopes to give his family full care and love, but what should I do if I am too busy to work?
Inviting confinement sisters, nanny, and housekeeping have become more and more common life choices, and at the same time, various disputes inevitably arise.
Disputes involved in housekeeping, money, generally, the amount is not large, when it comes to personal injury, it is generally not serious. It is a bit uncommitted to go to the law, and it is a bit unwilling to admit that it is bad luck. Zhou Haiping, President of the Second Court, and Niu Jinjing, Judge of Youanmen Court, interpreted the three typical domestic service disputes that have been tried in the past one by one, and explained the characteristics of the disputes.
【Case 1】
The old man's claim for his son who died after falling twice under the care of a nanny was rejected
Mr. Liu’s mother is very old and cannot take good care of her due to his health, work and family reasons.
So in December 2018, he signed a contract with the nanny Cui and a Beijing housekeeping service company to hire Cui to take care of the elderly in his mother's home.
Mr. Liu said that he thought that the elderly could be taken care of by Cui, but in May 2019, his mother was injured by an accident. Fortunately, the injury was relatively minor and he could recover after a while.
But then Cui neglected to take care of him, so that the old man fell off the bed again and was injured.
The fall caused the old man's physical injuries and injuries, and died in the hospital in June 2019.
Later, Mr. Liu believed that his mother was healthy and Cui had not fulfilled the corresponding duty of care, which caused the elderly to be injured again. He was at fault for the death of the elderly, so he asked Cui and a Beijing domestic service company to jointly compensate for medical expenses and other items. At the same time, the housekeeping service company is required to return the service fee and Cui's salary.
Cui argued that he was appointed and managed by the housekeeping service company and fulfilled his obligations in the process of caring for the elderly. Mrs. Zhang's death had nothing to do with it.
The housekeeping service company also argued that the contract it signed with Mr. Liu and Cui was an intermediary contract. There was no labor service or labor contract relationship with Cui, and the contractual obligations had been fulfilled and they did not agree to bear the responsibility.
During the trial of the case, the court commissioned an appraisal agency to appraise the causal relationship between Mrs. Zhang's death and the fall. The appraisal concluded that the old man was in line with the head injury and his own disease that caused the death.
The Beijing Fengtai Court held that according to Article 6 of the "People's Republic of China Tort Liability Law", the perpetrator should bear the tort liability for infringement of the civil rights and interests of others due to fault.
If the perpetrator is presumed to be at fault according to the law, and the perpetrator cannot prove that he is not at fault, he shall bear tort liability.
Article 26 stipulates that if the infringed party is also at fault for the occurrence of the damage, the liability of the infringer can be mitigated.
First of all, regarding the cause of death of Mrs. Zhang, according to medical records, the cause of death of the elderly was traumatic subarachnoid hemorrhage, etc. According to the appraisal conclusion issued by the appraisal agency, it was consistent with the death of head injury and own disease.
Based on the above facts, it can be seen that the cause of death of the elderly is the result of the joint effect of their own diseases and fall injuries.
Secondly, with regard to the legal relationship between Cui and the housekeeping service company, the "Contract" signed by Mr. Liu, Cui and the housekeeping service company stated that the housekeeping service company is an intermediary company, and the housekeeping service company shall provide both Mr. Liu and Cui as an intermediary company. Intermediary fees were collected and Mr. Liu paid directly to Cui. Therefore, the court determined that a housekeeping service company provided intermediary services during the process of forming an employment relationship between Mr. Liu and Cui, and there was no direct employment between Mr. Liu and Cui. relation.
Third, regarding whether Cui and the domestic service company are liable for compensation for the death of Mrs. Zhang, the court held that Cui, as the hired party, is responsible for taking care of the semi-self-care elders, and Cui has protection against fall injuries of the elders. Inadequate aspects.
But Mr. Liu waited for Cui to get along with Zhang alone, and Cui did not have the conditions not to leave the old man for a moment.
Mrs. Zhang herself suffers from a variety of diseases, which can easily lead to falls. Cui should not be blamed for all the consequences of the fall.
In addition, Cui and the housekeeping service company are not in an employment relationship. The housekeeping service company does not bear joint liability for Cui’s infringement, and there is no fault or negligence for the death of the elderly, so it does not bear tort liability for Zhang’s death.
For example, if Mr. Liu and others believe that a housekeeping service company has not fully fulfilled its intermediary service obligations, they may claim another liability for breach of contract.
Based on the above facts, the court comprehensively considered the case’s appraisal conclusion, Mrs. Zhang’s own illness and Cui’s degree of fault, and based on the existing evidence, determined that Cui should bear 15% of the compensation liability for the elderly’s reasonable losses and ruled Cui A compensated Mr. Liu and others for various expenses within the limit of liability; dismissed other claims of Mr. Liu and others.
After the verdict was pronounced in the first instance, Mr. Liu refused to accept and filed an appeal, and the original verdict was upheld in the second instance.
【Explanation and Reasoning】
Employers need to clarify the employment mode when selecting domestic service personnel through a domestic service company.
Only in this way can the rights and obligations of all parties be determined, and the parties responsible for tort liability can be identified.
The employment model in the domestic service industry can be summarized into two categories, one is employee-based employment, and the other is intermediary-based employment.
Employee-style employment refers to that the housekeeping service personnel have signed a labor contract or labor dispatch contract with the housekeeping service company, and the housekeeping service company signs the "Housekeeping Service Contract" with the employer as a party to the contract, and arranges the housekeeping service personnel to the employer's home to perform the corresponding housekeeping service , And continue to supervise and manage the follow-up housekeeping services.
In this type of employment, the housekeeping service personnel are employees of the housekeeping service company, and their provision of housekeeping service is a job behavior. Disputes arising at this time are determined by the employer and the housekeeping service agency based on their own rights and obligations.
If the relevant rights of the housekeeping service personnel are damaged, it may constitute a work injury or the housekeeping service company shall bear the employer's responsibility.
Intermediary employment refers to the housekeeping service company as an intermediary between the employer and the housekeeping service personnel, and the three parties jointly sign the "Housekeeping Service Contract".
Housekeeping service companies only charge intermediary fees and provide intermediary services. The relationship between housekeeping service personnel and employers is between employment and employment. The wages of housekeeping service personnel are paid directly by the employer. The job content is arranged by the employer. The rights and obligations of the housekeeping service are both It is enjoyed and performed by the employer and the housekeeping service personnel, and the determination of the liability for breach of contract shall also be borne by the employer and the housekeeping service personnel in accordance with the contract.
Once the housekeeping service personnel have infringed acts, the employer should also claim the infringement liability against the housekeeping service personnel, and the housekeeping service company does not need to be liable for compensation for the infringement of the housekeeping service personnel.
In this case, the housekeeping service company provides an intermediary housekeeping service model, and the consequences of injury should be shared by the employer and the housekeeping service staff according to the degree of fault, and the housekeeping service company does not bear tort liability.
【Case 2】
Employer claims that the nanny has not taken care of it and deducts wages
In October 2019, Ann signed the "Housekeeping Service Contract" with the babysitter Wang and a Beijing housekeeping service company, stipulating that Wang would go to Ann's house as a live-in nanny to take care of his daily life. The service period is 1 year and the salary is monthly 5000 yuan.
Wang said that not long after he arrived at the employer's An Mou house, the other party added his fists for various reasons, he called the police afterwards, and left the An Mou house.
However, there are still some wages that have not been settled, so they filed a lawsuit in the court and demanded An and the housekeeping service company to pay arrears of wages.
Regarding this, An said that the failure to pay Wang's salary was due to Wang's inadequate service during the service period, which caused losses to himself, and constantly accused Wang that "it was Wang himself, because he did not serve well, so he didn't need to pay."
Regarding Wang's request for salary, the housekeeping service company also did not agree to pay, saying that it performed the corresponding intermediary service in accordance with the contract and should not be responsible for the dispute between the employer and the nanny.
The court found that the focus of the dispute in the case was whether Wang had fully and appropriately fulfilled his contractual obligations, and whether the housekeeping service company was obligated to pay Wang’s labor fees.
First, a legally established contract is protected by law, and both parties to the contract shall perform their contractual obligations in accordance with the agreement.
The housekeeping service contract signed between Wang, An and the housekeeping service company is legal and valid, and each party shall perform their rights and obligations in accordance with the contract.
Article 7 of the "Housekeeping Service Contract" in the case stated that "Party A (An) shall pay Party C (housekeeping service company) a one-time intermediary service fee of 1,500 yuan", "Party A (An) shall pay Party B in advance ( Wang)’s first month’s salary shall be kept by Party C (the housekeeping service company).” In combination with An and the housekeeping service company, both parties agree that An’s wages will be paid directly to Wang. This shows that the housekeeping service company’s contractual obligations Provide housekeeping services for intermediary service personnel. When receiving the first month's salary prepaid by An, the company can take care of it. Now the company has fulfilled the main contract obligation, that is, intermediary introduction service, and An has not paid the first month's salary in advance, so The company does not need to perform the obligation of custodial and subsequent payment of wages. An and Wang established a labor service contract relationship, and An should pay Wang's salary as agreed.
The housekeeping service company is only an intermediary service provider and should not bear the obligation to pay Wang's salary.
Regarding the amount of wages paid, the court determined that Wang did not perform the corresponding obligations in full in accordance with the contract and constituted a breach of contract based on the audio recordings, chat records and other evidence submitted by both parties. Time and specific circumstances will reduce the amount of labor fees claimed by Wang.
In the end, it was judged that An paid part of Wang's labor costs.
After the verdict was pronounced in the first instance, both Wang and An filed an appeal, and the original verdict was upheld in the second instance.
【Explanation and Reasoning】
Employers shall clarify their respective rights and obligations when signing a tripartite housekeeping service contract with housekeeping service companies and housekeeping service personnel.
In the event of a dispute, the right remedy should be sought in accordance with the principle of contract relativity to avoid the burden of litigation by all parties.
On the one hand, domestic service personnel should fully perform their obligations in accordance with the contract, and on the other hand, they should also abide by general professional ethics and professional norms. If they fail to perform their obligations fully and properly, they should bear the legal consequences arising therefrom. The employer may not pay or pay accordingly. Underpaid wages.
It should be noted that in the housekeeping service model in which the housekeeping service company provides intermediary services, the wages of the housekeeping service personnel should be borne by the employer.
Domestic service personnel improperly perform their obligations and should bear corresponding liabilities for breach of contract.
[Case 3]
"Mentally abnormal" nanny injured the employer's relatives, a housekeeping company was convicted of responsibility
Mr. Dai was introduced by a housekeeping service center and signed an "intermediary contract" with Hu, and hired Hu to do family service work. The scope of work includes taking care of the elderly. The salary is 3800 yuan per month. The trial period is 1 month. After the expiration of the contract Take effect automatically.
It is understood that the three parties agreed that Mr. Dai should pay 800 yuan for the information service fee of the housekeeping service center, and Hu Mou pays 20% of the total salary of the housekeeping service center in the first month as the information service fee; at the same time, Mr. Dai should pay the first month after Hu Mou completes one month of work Pay Hu Mou's salary of 3,800 yuan in the next day.
If Hu accidentally destroys the customer’s belongings, he should negotiate compensation by himself. During Hu’s care work, he should pay special attention to safety. If the care recipient is injured or killed in the caregiver’s line of sight, Hu shall be responsible for all consequences.
On March 2, 2016, Mr. Dai’s relatives discovered that Hu had abused the elders in the course of providing services and stopped them. Then they had a physical conflict with Hu and called the police. Afterwards, the police took Hu back to the police station and found Hu. He developed symptoms of an abnormal mental condition, so he was sent to the hospital for diagnosis and treatment, after which he was sent to Huilongguan Hospital.
On the same day, Mr. Dai's relatives were also sent to the hospital for treatment and paid for medical and nursing expenses.
Mr. Dai believes that the housekeeping service center does not have relevant practice licenses and is responsible for reviewing whether employees are eligible for employment. However, it has not conducted a normal review of Hu's situation and has a major fault for the injuries suffered by Mr. Dai’s relatives and should bear corresponding legal liabilities. The housekeeping service center is required to compensate the total cost of more than 43,000 yuan and return the 800 yuan service fee that has been collected.
After trial, the court held that citizens enjoy the right to life and health, and if they infringe upon citizens' body and cause harm, they should compensate for reasonable economic losses.
Hu was responsible for injuring Mr. Dai's relatives.
Although a housekeeping service center only provides intermediary services, it should truthfully provide important facts about the conclusion of the contract, and perform the corresponding review obligations for the introduced personnel. The review obligations include not only whether there are infectious diseases, but also the mental health status of the personnel , Psychological quality, whether there are public security penalties or criminal records, etc. to conduct a basic review.
In this case, the housekeeping service center failed to perform adequate audit duties on Hu, and was at fault. It should bear the corresponding compensation liability for the damage caused by Mr. Dai's relatives.
According to the actual situation of the case, the court determined that the proportion of responsibility assumed was 20%, and finally ruled that the Housekeeping Service Center should compensate Mr. Dai’s relatives for a total of 2,386 yuan for various expenses.
In addition, because the counterparty who signed the contract with the housekeeping service center was Mr. Dai, the relatives of Mr. Dai claimed that a certain housekeeping service center should not support the refund of the service fee. The judgment also rejected other claims of Mr. Dai’s relatives.
【Explanation and Reasoning】
The case is a case in which a domestic service worker injured his employer in the course of providing services, and the Intermediary Domestic Service Company assumed part of the liability for compensation.
The perpetrator infringes on the civil rights and interests of others due to his fault and shall bear the tort liability.
If the perpetrator is presumed to be at fault according to the law, and the perpetrator cannot prove that he is not at fault, he shall bear tort liability.
As the main body of the market, the domestic service company should first obtain the relevant practice license. At the same time, the domestic service personnel’s qualifications and working conditions should be reviewed within a reasonable range. The review should not only include the review of physical illness, but also the mentality within a reasonable limit. Examination of conditions, psychological quality, practice skills, practice standards, etc., to meet the needs of housekeeping services.
In this case, Hu had repeatedly abused his employees in the process of providing services to the employer, and this behavior was obviously not in line with the practice norms recognized by ordinary people.
Combined with the fact that the police from the police station sent Hu to a psychiatric hospital for diagnosis, in this case, the employer was injured due to Hu’s behavior, and the domestic service company should be liable for compensation within the scope of its fault in providing intermediary services.
In particular, if the housekeeping service company fails to fulfill the duty of reviewing the qualifications and conditions of the housekeeping service staff within a reasonable limit and causes the employer to be injured, it shall be liable for compensation within the scope of its fault.
[Judge Tips]
According to the judge, through the investigation of cases involving domestic disputes conducted by the court in the past three years, it is found that such cases have the characteristics of "three concentrations": first, the cause of the case is relatively concentrated, mostly based on domestic service contract disputes; second, The causes of disputes are relatively concentrated, and the focus of disputes is mainly on issues such as asking for wages in contract disputes or injury claims in tort disputes; third, the housekeeping model is relatively concentrated, which is mainly divided into two modes: employee mode and intermediary mode.
The judge said that domestic service disputes generally involve three parties: employers, domestic companies, and domestic workers. What kind of domestic labor model is used for domestic service is the basis for determining the three-way law.
According to the different choices, the legal responsibilities of the three parties are also different.
In addition, through combing through typical cases, the court found that unclear rights and obligations, weak risk awareness of all parties, and lack of service awareness of domestic workers have also become important legal risks in the domestic service industry.
At the same time, it is worth noting that, combined with the results of the investigation, the Fengtai Court also made relevant legal recommendations for the three legal entities in the domestic service industry. Personnel related qualifications, complete registration and record work, and strengthen communication with their work to avoid unnecessary damage.
The second is to suggest that housekeeping companies should pay attention to the formal and substantive review of domestic staff's employment materials, perform and continuously strengthen pre-job training services; purchase commercial insurance for domestic staff to reduce their own losses.
Third, it is recommended that domestic workers should be familiar with the work content and requirements in advance; for service content with special care requirements, they should be fixed in the contract in written form and pay attention to the retention of evidence; in the process of practicing, they should abide by professional norms and strengthen communication with employers to avoid serious problems. The consequences come.
This edition / our reporter Wang Haoxiong