Home >

Cancelling The Contract In The Former &Nbsp; Whether The Work-Related Injury Can Enjoy Industrial Injury Treatment After It Is Identified.

2011/6/16 10:38:00 43

??? 日本語 Fran?ais English 中文

Rescission Of Contract Work-Related Injury Treatment Of Industrial Injury

Wu was recruited by a Mining Company Limited (hereinafter referred to as the company) in October 1989 and worked for pushing ore and drilling.

The last labor contract is from January 1, 2008 to December 31, 2012.

In June 18, 2009, due to theft of cables by Wu, the company was based on "

labour law

"And the regulations on the implementation of rewards and punishments for employees of the company have lifted the labor contracts of both sides, and fined 1000 yuan for Wu.

When Wu was away from the mine, the company did not carry out occupational health examination.

In August 31, 2010, Wu was diagnosed as silicosis in Yantai occupational disease hospital.

In November 25th of the same year, the local bureau of human resources and social security decided that Wu was injured as an industrial injury.

In November 30th of the same year, after the appraisal by the local labor capacity appraisal committee, the degree of dysfunction was 7.

The company did not raise any objection when it received a written decision on the work-related injury and the conclusion of its labor capability appraisal.

In December 2010, Wu found the company's 7 level treatment for work-related injuries, and was rejected by the company, which brought the company to the local labor dispute.

Board of arbitration

。

The focus of controversy in this case is: before the termination of the labor contract, can the industrial injury be treated if Wu is identified?

The first opinion is that Wu's request should not be supported.

The reason is:

Employment injury insurance

The thirty-seventh clause and the second paragraph of the regulation stipulate: "when the labor or employment contract expires or the worker himself proposes to terminate the labor and employment contract, the work-related injury insurance fund shall be paid a one-time industrial injury medical subsidy, and the employer shall pay a one-time disability employment subsidy."

According to the above provisions, the two "one-time treatment" can only be enjoyed when the two sides terminate (terminate) the labor contract, including the fact labor relationship.

Wu has rescind the labor contract with the company in June 18, 2009, so far there is no legal relationship between the two sides.

If Wu disagrees with the way the company terminates the labor contract, it should also lodge a complaint with the local labor dispute arbitration committee in the time limit for the application of labor arbitration, and assert its rights.

However, Wu did not raise any objection and could be convinced that his practice of the company was approved.

Now, Wu takes the company as the defendant subject to appeal to the Arbitration Commission, requiring the company to pay its 7 level work-related injury treatment.

In addition, the theft of facts has been established. It is not improper for the company to terminate the labor contract in accordance with relevant regulations.

The second view is that Wu's request should be supported.

The reasons are: first, the thirty-second article of the law on prevention and control of occupational diseases stipulates that: for workers engaging in occupational hazards, the employing units should organize occupational health examination before and during their posts and in accordance with the provisions of the Department of health administration of the State Council, and will inform the workers faithfully about the results of the inspection.

The cost of occupational health examination shall be borne by the employer.

Workers who have not undergone occupational health examination before leaving work shall not terminate or terminate their labor contracts.

The forty-second provision of the labor contract law stipulates: "if a worker engaging in occupational disease hazards does not carry out occupational health examination before leaving work, the employer shall not terminate the labor contract with the worker."

In accordance with the above provisions, the company did not check out the health examination before leaving Wu, and it was contrary to the law of Wu's termination of labor contract.

In addition, despite the fact that Wu's theft was established, the company was relieved of its labor contract according to the labor law and the unit rules and regulations. However, the labor law came into effect on January 1, 1995. The occupational disease prevention act was put into effect in May 1, 2002. According to the principle of "the new law is better than the old law", the company is not using the law clause to cancel the labor contract with Wu, and it should respond to Wu's occupational health examination and then terminate the labor contract with Wu.

Therefore, the fact that the company and its dissolution of labor contract are not legally bound from the beginning is invalid.

Second, the eighteenth section of the regulations on industrial injury insurance stipulates: "the application for industrial injury identification shall submit the following materials: (1) application form for work injury identification; (two) evidence materials for labor relations (including fact labor relations) with employers"; (three) medical diagnosis certificates or occupational disease diagnosis certificates (or occupational disease diagnosis identification books).

According to the above provisions, Wu submitted to the local bureau of human resources and social security to identify work-related injuries, and the materials submitted were in line with the requirements, and there was labor relationship between Wu and the company.

Otherwise, the human resources and Social Security Bureau will not accept the case, nor will it be determined that according to the relevant legal provisions, Wu is injured by industrial injury and the degree of dysfunction is 7.

Moreover, the Bureau of human resources and social security delivers the work-related injury determination decision and labor capability appraisal conclusion to the company. After receiving the application, the company did not apply for administrative reconsideration during the effective appeal period, nor did it raise any objection.

It can be corroborated that the fact that the company has been injured by Wu is work-related injury and disability grade 7 is recognized and the fact labor relationship between them exists.

To sum up, the company should pay 7 work-related injuries according to the relevant regulations of the industrial injury insurance Ordinance.