Joint Liability For Tort Liability Between Two Units

"I am just a buyer of the staff canteen of the company, and it is more common than usual." Gu Qiang said, if the company does not start a new company in Guan, Hebei, the labor dispute between him and the company will not be so noisy, and the case will not be so complicated.

Reporters recently learned that, because the two affiliated companies have mixed employment with each other, allowing the parties to go to work in Beijing and Hebei frequently, the case is not only a contest between the defendants, but also whether the jurisdiction of the Beijing court or the jurisdiction of the Hebei court is controversial.

Faced with the so-called new evidence and new ideas put forward by the two companies, Zhang Zhiyou, a sincere public interest lawyer who provided legal aid to Gu Qiang, should deal with it calmly and resolve them one by one. In the end, the court decided to compensate the company for 150 thousand yuan.

The employee sued Beijing company and Hebei company stepped in to stop it.

In 2004, Gu Qiang joined Beijing Aerospace Zhen Guo Co., Ltd. (hereinafter referred to as "Beijing company") in 11 months, and engaged in procurement work in the company's canteens. In 2007, the company signed a labor contract with a term of one year. After the contract expired, he continued to work in the company canteen, but he never signed it with the company. Labor contract 。

In 2011, the Beijing company invested in Hebei, Guan, Hebei to establish an independent legal entity Hebei Aerospace Zhen Guo Co., Ltd. (hereinafter referred to as "Hebei company"). Since 2013, Gu Qiang has been working frequently between Beijing and Hebei Guan in accordance with the company's arrangement, and the working place is not fixed.

Last March 15th, Gu Qiang was instructed by the leaders to work in the canteen of Hebei company. On that day, when he was working, the leader called him to the office to talk. During the conversation, the leader informed him that because of his negligence in work, the canteen had used expired food, causing several workers to discomfort after eating in the canteen and go to hospital for treatment. In order to educate them, the company decided to stop its work and ask him to go home and reflect on it.

A few days later, Gu Qiang received the notification letter sent by registered mail of Beijing company. The contents were: "because of the fact that Gu Qiang has neglected his duties, he has not fulfilled his duties properly, resulting in food safety problems in the mess hall. In view of the serious violation of company discipline and the code of conduct for employees, the company decided to lift the labor relations of Gu Qiang in March 16, 2015.

"I worked in the company for more than 10 years, working hard every day, working hard, being responsible for the work and never having any accidents. But on the grounds of this reason, the company relieves my labor relations. It's really annoying! "Gu Qiang found the leader's request for comment. The leader said it was a collective decision of the company and could not be withdrawn.

Later, Gu Qiang knew that relatives of his leader saw his post and replaced him. "In other people's eyes, canteen procurement is a bad job, and many people want to do it." Now, when the leaders' relatives come, I can't do it. " Gu Qiang said.

Gu Qiang could not swallow this tone. He applied to the arbitration agency for a ruling that the Beijing company paid 260 thousand yuan for the economic compensation for breaking the labor relationship illegally. However, during the trial, the company lawyer submitted a labor contract signed by Hebei company, which ended on 2017.

Accordingly, the company lawyer proposed that Gu Qiang was taken as a company by the Beijing company. Applicant The main body is ill suited. Although Gu Qiang had denied having signed a labor contract with Hebei company, he could not deny the authenticity of the labor contract. Finally, the arbitration rejected the application of the Beijing company's main body's discomfort.

When the application for arbitration was rejected, Zhang solicitor filed a lawsuit against the Fengtai District Court on behalf of the lawyer. At the same time, the court submitted an application for the co defendant of the Hebei company as the case.

The reason for the addition of the Hebei company to the defendant is that the Hebei company is actually controlled by the Beijing company, and the two is the affiliated company. In terms of employment, the two companies make use of the relationship to take turns in signing labor contracts and changing labor relations with Gu Qiang. As a result, the two companies violated the legitimate rights and interests of Gu Qiang. Therefore, Hebei companies should be supplemental to the joint defendants according to law, and they shall be jointly liable to the company with the Beijing company.

In the trial, the Beijing company and the Hebei company commissioned the same lawyer to represent the case. The lawyer's reply on behalf of the Hebei company on the supplementary Hebei company for the joint defendants was: the court of first instance directly appended the Hebei company as the co defendant, violating the labor dispute procedure stipulated by the law, requiring the procedure of "arbitration preposition", which is a procedural error. Therefore, it is not possible to directly add the Hebei company to the joint defendant.

In response, Zhang suggested that, according to the seventh provision of the Beijing Higher People's court and the Beijing labor dispute arbitration committee on the legal application of labor dispute cases, "in labor" Arbitral proceedings The parties who have to participate in arbitration must be jointly omitted. The people's court may append in accordance with the law in the first instance proceedings without further arbitration. "

Zhang said that since Gu Qiang had signed a labor contract with the Hebei company, the Hebei company belonged to the party who must participate in arbitration. Therefore, the court of first instance can directly add the Hebei company to the joint defendant in this case.

The court of first instance adopted Zhang's opinion and decided to directly append the Hebei company to the joint defendant.

After being accused of the case, the Hebei company did not give up. In order to avoid infringement liability, the company also raised objection to the court. Hebei company believes that Gu Qiang and its establishment of labor relations, working place in Guan, Hebei, in accordance with territorial jurisdiction principle, the case should be transferred to Guan court in Hebei, Beijing Fengtai District court has no jurisdiction.

Zhang countered that Gu Qiang had signed labor contracts with Beijing and Hebei companies, and the two companies should be identified as Gu Qiang's employing units. The location of Gu Qiang's work place varies between Beijing and Hebei Guan, and the working place is not fixed. In this regard, the eighth interpretation of the Supreme People's court's interpretation of several issues concerning the application of laws in labor dispute cases stipulates: "labor dispute cases are governed by the grass-roots people's Court of the place where the employer is located or where the labor contract is performed. Where the place of performance of the labor contract is not clear, it shall be under the jurisdiction of the basic people's court at the place where the employer is located. " Fengtai, Beijing, as the location of Beijing company and the fulfillment place of the ancient Qiang labor contract, the Fengtai District court has jurisdiction over the case.

The court of first instance held that Fengtai, Beijing, as a registered place of Beijing company, has jurisdiction over the case in Fengtai District. Accordingly, the ruling objection to the application of jurisdiction objection of Hebei company was ruled out. The Hebei company refused to accept the ruling and appealed to the second intermediate people's Court of Beijing.

The court of second instance concluded that, for this case, both the Fengtai District court of Beijing and the Guan court of Hebei have jurisdiction over the case. Gu Qiang chose to file a lawsuit with the Fengtai District court of Beijing, in line with the thirty-fifth article of the civil procedure law that "two or more people's courts have jurisdiction over the case, and the plaintiff can bring a suit in one of the people's courts. The plaintiff's jurisdiction over two or more people's courts with jurisdiction is governed by the people's Court of first instance". Therefore, the court of second instance finally ruled against the appeal and upheld the ruling of the court of first instance.

After the procedural problem was settled, the two companies began to make trouble in the fact of the case. The strategy adopted by the company is that the Beijing company strongly denied that there existed labor relations with Gu Qiang after November 2011, but it was recognized that it issued a notice of termination of labor relations to Gu Qiang in March 2015. The Hebei company recognised the existence of labor relations with Gu Qiang after November 2011, but denied that the labor relations with Gu Qiang had been lifted and that Gu Qiang still worked in the company.

To prove this proposition, the company submitted two ancient Qiang labor contracts to the court. Among them, the labor contract signed with Beijing company has expired, while the labor contract with Hebei company is still in the performance period. Therefore, the company lawyers claimed that Gu Qiang had requested the Hebei company to bear the liability of compensation according to the action of Beijing company to terminate its labor relations. There was no factual and legal basis.

With the development of the case, the Hebei company also issued a notice to relieve the ancient Qiang labor relations to the court. The notice stated that in January 5, 2016, the Hebei company lifted the ancient strong labor relations. The reason is that Gu Qiang had absenteeism for more than 3 days during his work and seriously violated the company's rules and regulations. As a result, the Hebei company proposed that the company was dismissed from the company's serious violation of the company's rules and regulations, and the company did not have to pay any economic compensation to it.

Gu Qiang said that the company lifted it from Beijing. Labor relations After that, he never went to the company again. After 10 months, the Hebei company once again lifted its labor relations on the grounds of its absenteeism. It wanted to circumvent the tort liability to cope with the new tricks of the lawsuit.

Zhang suggested that after his entry into Beijing, his salary has been paid by the Beijing company. After 2011, it was arranged by the Beijing company to work in Hebei company, but the working place was not fixed, and it traveled to Beijing and Hebei for a long time. After the signing of the labor contract with the Hebei company, but when signing the labor contract, the two companies did not indicate the main body of the labor contract, and only signed a contract to be retained by the company.

Zhang believes that because of the mixed employment of the two companies, Gu Qiang can not determine the existence of labor relations with which company. Because the two companies are related and mixed with the employment behavior, the Beijing company's lifting action is also applicable to Hebei company. Hebei company takes the final responsibility. Liability for compensation It is also reasonable.

The court held that the interpretation of the Supreme People's Court on Several Issues concerning the application of the law in labor dispute cases (four): the fifth provision: "the laborers are not assigned to the new employer units for their own reasons, and the original employers do not pay the financial compensation, and the laborers are in accordance with the thirty-eighth provisions of the labor contract law. Employing unit If a labor contract is terminated or the new employer proposes to terminate or terminate the labor contract to the laborer, when the working life of calculating the payment of economic compensation or compensation is calculated, the people's court shall support the worker's request for the merger of the working life of the original employer to the working life of the new employer.

The judicial interpretation also stipulates that the employer should be deemed to be a laborer who is assigned to work in the new employing unit for reasons of his own: (1) the worker is still working in the original workplace and work place; the main body of the labor contract is changed from the original employing unit to the new employing unit; (two) the employing unit is working to mobilize the laborers in the form of organizational appointment or appointment; (three) the work mobility is caused by the merger and division of the employer; (four) the employing unit and its associated enterprises have signed labor contracts with the workers in turn; (five) other reasonable cases.

According to the above provisions and the actual situation of disputes between Gu Qiang and the company, the court held that the actions of Beijing company and Hebei company to dissolve the ancient strong labor relations were in violation of the law, which was illegal. The age of Gu Qiang in the two companies should be calculated in combination, and the final judgment was that the Hebei company should compensate the 150 thousand yuan for the violation of the labor relations by Gu Qiang, and the Beijing company was jointly and severally liable for this.

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