For workers engaged in operations that expose them to occupational disease hazards, the employer shall organize occupational health examinations before, during and after leaving the post in accordance with the provisions of the administrative department of health under the State Council, and inform the employees in writing of the inspection results. The cost of occupational health examination shall be borne by the employer. Note that the employer shall not terminate or terminate the labor contract concluded with the employee who has not undergone the pre-departure occupational health examination.
【Basic Facts】
On August 21, 2017, the Company signed a labor contract with Mr. Jing, and the agreed contract period was from August 21, 2017 to August 20, 2020. Jing mou in the company's welding department engaged in welding operation positions, the expiration of the contract period or the termination conditions agreed by the two parties appear, the contract is terminated, the company should issue a written certificate to Jing, and timely handle the relevant procedures for terminating the contract. On the same day, the two sides also signed a letter of agreement on occupational disease hazard factors, indicating that the hazard factors are: noise, welding soot, nitrogen oxides, etc.
On August 17, 2020, the company issued a Notice of Expiration of Labor Contract to Jing, informing Jing that the labor contract signed by both parties of Jing would expire on August 20, 2020, and after the expiration of the labor contract, the company would no longer renew the contract with Jing, and should pay the defendant economic compensation of 16374.72 yuan. On the same day, the two sides handled the handover of resignation, and the company issued a "Notice of Departure Physical Examination" to Jing, informing Jing to go to × Hospital for occupational health examination on August 24, 2020.
On August 25, 2020, Jing mou made an occupational health examination on time, and the hospital made an inspection result of Jing's occupational health examination as follows: No inorganic dust and zinc oxide were suspected of occupational diseases in this physical examination, and inorganic dust and zinc oxide could leave the post. It is necessary to recheck the electrical measurement and hearing within 48 hours of getting out of the noise environment within one month, and then make a noise occupational physical examination conclusion.
On October 28, 2020, the hospital made a review conclusion as follows: the hearing threshold of the binaural frequency 500-2000HZ frequency band after the age correction of the electrical audiometry (review) > 25dB. The average auditory threshold for binaural high frequencies > 40dB. It is recommended to submit it to the Occupational Disease Diagnosis Agency for further clarification of the diagnosis. Since then, the two sides have had a dispute over the issue of "confirming professional history", which has not been successful many times, resulting in the company not making further diagnosis so far.
On October 29, 2020, Mr. Jing applied to the Labor Dispute Arbitration Commission for arbitration, requesting the restoration of the labor relationship with the Company, and the Arbitration Commission ruled that "the Company and Mr. Jing shall resume the labor relationship from August 21, 2020".
【Trial Result】
Judgment: Confirm that the employment relationship between the Company and Jing was terminated on August 20, 2020 (Jing may separately require the plaintiff to bear corresponding legal liabilities for the illegal termination of the labor contract between the two parties by the company).
【According to the example】
The court held that the focus of the dispute in this case was whether the termination of the labor relationship between the company and Jing was legal.
Article 45 of the Labor Contract Law of the People's Republic of China stipulates that "[Overdue Termination of Labor Contract] Where a labor contract expires and there is one of the circumstances provided for in Article 42 of this Law, the labor contract shall be extended until the corresponding circumstances disappear." However, the termination of the labor contract of a worker who has lost or partially lost the ability to work as provided for in Paragraph 2 of Article 42 of this Law shall be implemented in accordance with the provisions of the State on work-related injury insurance. Article 42 stipulates that "[Circumstances under which an Employer May Not Terminate a Labor Contract] An Employer shall not terminate a labor contract in accordance with the provisions of Articles 40 and 41 of this Law if an employee has any of the following circumstances: (1) The employee engaged in operations that exposes to occupational disease hazards has not undergone an occupational health examination before leaving his post, or the suspected occupational disease patient is under diagnosis or medical observation; ..." Article 35 of the Law of the People's Republic of China on the Prevention and Control of Occupational Diseases stipulates that "for workers engaged in operations that are exposed to occupational disease hazards." The employer shall organize occupational health examinations before, during and after leaving the post in accordance with the provisions of the administrative department of health under the State Council, and inform the employees in writing of the inspection results. The cost of occupational health examination shall be borne by the employer. Employers shall not arrange for workers who have not undergone pre-employment occupational health examinations to engage in operations that come into contact with occupational disease hazards; they may not arrange for workers with occupational taboos to engage in operations that are prohibited; workers who are found to have health damage related to the occupation they are engaged in during occupational health examinations shall be transferred from their original posts and properly placed; workers who have not undergone pre-occupational health examinations shall not be terminated or terminated from the labor contracts concluded with them. Occupational health examinations shall be undertaken by medical and health institutions that have obtained a "Medical Institution Practice License". The administrative department of health shall strengthen the standardized management of occupational health inspection work, and the specific management measures shall be formulated by the administrative department of health under the State Council. ”
In this case, the employment contract signed by the two parties expired on August 20, 2020, and if there is no prohibition on termination by law, the expired labor contract shall be terminated at the expiration of the term, and if so, it should be extended until the corresponding circumstances disappear. In this case, the employment contract between the company and Jing mou expired on August 20, 2020. On August 17, 2020, the company issued a Notice of Expiration of Labor Contract to Jing, informing Jing that after the expiration of the labor contract, the company will no longer renew the contract with Jing. On the same day, the two sides handled the handover of resignation, and the company issued a "Notice of Departure Physical Examination" to Jing, informing Jing to go to the hospital for occupational health examination on August 24, 2020. Obviously, the company terminated the labor contract with Jing before the occupational health examination before jing left the post. Therefore, the company terminated the labor contract with Jing on the grounds that "after the expiration of the labor contract, the company will no longer renew the contract with you", which did not comply with the procedures prescribed by law, and its termination was illegal.
On the question of whether the employment relationship between the two parties should be restored. Article 48 of the Labor Contract Law of the People's Republic of China stipulates that if an employer terminates or terminates a labor contract in violation of the provisions of this Law, and the employee requests to continue to perform the labor contract, the employer shall continue to perform; if the employee does not request to continue to perform the labor contract or the labor contract can no longer be performed, the employer shall pay compensation in accordance with the provisions of Article 87 of this Law. Although Jing X requested to resume and continue to perform the labor contract when applying for arbitration, but the company and Jing X had a dispute over the health examination issue, they communicated many times, and the contradiction between the two parties did not decrease, but further intensified, there was no basis for trust between the two parties, and the company also clearly expressed its unwillingness to continue to perform the labor contract with Jing. In addition, the results of Jing's examination were that no inorganic dust and zinc oxide were suspected of occupational diseases, inorganic dust, zinc oxide, and noise occupational physical examination conclusions were: the hearing threshold of the binaural frequency 500-2000HZ band after the age correction of the electrical audiometry and hearing examination (review) was> 25dB. The average hearing threshold of both ears is > 40dB, and it is recommended to submit it to the occupational disease diagnosis agency for further confirmation of the diagnosis. Although the noise occupational examination requires further diagnosis, the above test results do not have obvious conclusions to confirm the existence of occupational diseases. Because the labor contract has a strong personal subordination, the basis for establishing an employment relationship between the employer and the employee is based on mutual trust and mutual cooperation, and in the case that the basis of trust between the two parties no longer exists, if the labor contract is ordered to continue to perform the labor contract, it will not be conducive to the proper settlement of the labor dispute between the two parties. Considering both of the above circumstances, the Court held that the employment relationship between the parties should not be restored. For the company to illegally terminate the labor contract between the two parties, Jing may separately require the plaintiff to bear the corresponding legal liability.