Zhang Chuanjie v. Shanghai Jinghao Labor Service Co., Ltd., et al. for Dispute over an Employment Contract

Zhang Chuanjie@Shanghai Jinghao Labor Service Co., Ltd.

[Judgment Abstract]
Where an employee engaging in operations with exposure to occupational disease hazards does not receive an off-the-job occupational health examination, the employer may not rescind or terminate the employment contract it has concluded with the employee. Even though the employment contract has been rescinded through negotiation between the employer and the employee, the rescission of the employment contract should be determined as invalid.
Plaintiff: Zhang Chuanjie, male, 47 years old, Chinese Han, domiciled in Funan County, Anhui Province.
Defendant: Shanghai Jinghao Labor Service Co., Ltd., domiciled in Chuansha New Township, Pudong New Area, Shanghai Municipality.
Legal Representative: Wang Wenqing, Manager of this Company.
Defendant: China Shipping Industry (Shanghai Changxing) Co., Ltd., domiciled in Changxing Island, Chongming County, Shanghai Municipality.
Legal Representative: Zhang Yibing, Chairman of the Board of Directors of this Company.
Plaintiff Zhang Chuanjie filed a lawsuit with the People's Court of Chongming County against defendants Shanghai Jinghao Labor Service Co., Ltd. (hereinafter referred to as “Jinghao Company”) and China Shipping Industry (Shanghai Changxing) Co., Ltd. (hereinafter referred to as “China Shipping Industry Company) for dispute over a labor dispatch contract.
Plaintiff Zhang Chuanjie alleged that: In October 2007, he concluded an employment contract with Shanghai Xingxu Labor Service Co., Ltd., whose legal representative was Wang Wenqing. In January 2010, plaintiff was transferred to defendant Jinghao Company, whose legal representative was also Wang Wenqing. From October 2007, plaintiff was dispatched to defendant China Shipping Industry Company to serve as an electric welder. On January 13, 2014, Jinghao Company and plaintiff concluded an agreement on rescission of the employment contract through negotiation. Plaintiff required an off-the-job occupational health examination and Jinghao Company promised to arranging a physical examination for him after the conclusion of the agreement, but Jinghao Company went back on its word the second day. After plaintiff filed a complaint with the relevant department, Jinghao Company arranged a physical examination for plaintiff. Plaintiff alleged that the agreement on rescission of the employment contract through negotiation concluded by and between him and Jinghao Company was a standard form contract provided by Jinghao Company, and although, according to the agreement, it was plaintiff who proposed the rescission of the employment relation, as a matter of fact, it was Jinghao Company that initiated the rescission of the employment relation. Plaintiff initiated arbitration and filed a lawsuit and required that the employment relation between plaintiff and Jinghao Company should be resumed from January 13, 2014.
Defendants Jinghao Company and China Shipping Industry Company contended that: Plaintiff Zhang Chuanjie concluded an agreement on rescission of the employment relation with Jinghao Company on January 13, 2014 and Jinghao Company has paid Zhang Chuanjie the compensation. Since plaintiff has left defendant for more than one year, it disagreed to resume the employment relation.
After the trial of first instance, the People's Court of Chongming County, Shanghai Municipality found that:
After plaintiff Zhang Chuanjie and defendant Jinghao Company established the employment relation in January 2010, Zhang Chuanjie was dispatched to defendant China Shipping Industry Company to serve as an electric welder. The time limit of the last employment contract concluded by and between both parties was from January 1, 2010 to June 30, 2014. On January 13, 2014, Jinghao Company (Party A) and plaintiff (Party B) concluded an agreement on rescission of the employment contract through negotiation. It was stipulated in the agreement that Party A and Party B agreed to rescind the employment relation on January 13, 2014 and the employment rights and obligations of both parties were terminated; and Party A paid Party B CNY48,160 in lump sum, and the aforesaid sum of money included economic compensation for rescission of the employment contract, other due remuneration as well as benefits. On January 21, 2014, Jinghao Company paid plaintiff CNY48,160.
In April 2014, it was diagnosed by Shanghai Pulmonary Hospital that plaintiff Zhang Chuanjie suffered from electric welder pneumoconiosis (phase 1). On December 10, 2014, plaintiff was appraised by the Shanghai Labor Capacity Appraisal Commission as suffering from an occupational disease with disability grade 7. On November 27, 2014, plaintiff filed an application for arbitration with the Arbitration Commission for Labor and Personnel Disputes of Chongming County, Shanghai Municipality and required that his employment relation with Jinghao Company should be resumed from January 13, 2014. The Arbitration Commission for Labor and Personnel Disputes of Chongming County did not uphold the claim of plaintiff.
After the trial of first instance, the People's Court of Chongming County, Shanghai Municipality held that:
Where an employee engaging in operations with exposure to occupational disease hazards did not receive an off-the-job occupational health examination or the employee was a suspected patient with an occupational disease during the diagnosis or medical observation period, the employer may not rescind the employment contract in accordance with the provisions of Articles 40 and 41 of the Labor Contract Law of the People's Republic of China (hereinafter referred to as the “Labor Contract Law”). The rescission of the employment relation between plaintiff and defendant through negotiation did not fall under any circumstance as prescribed in Articles 40 and 41 of the Labor Contract Law and the employment relation was rescinded on the true will of both parties. Since plaintiff Zhang Chuanjie suffered from an occupational disease with disability grade 7, the employment contract concluded by and between plaintiff and defendant expired, and defendant Jinghao Company disagreed to resume the employment relation, plaintiff's claim that his employment relation with Jinghao Company should be resumed from January 13, 2014 lacked legal basis and should not be upheld.
Therefore, in accordance with the provisions of Articles 36, 41, and 42 of the Labor Contract Law, on June 24, 2015, the People's Court of Chongming County, Shanghai Municipality rendered a judgment that:
The claim of plaintiff Zhang Chuanjie that the employment relation between him and appellee Shanghai Jinghao Labor Service Co., Ltd. should be resumed from January 13, 2014 should not be upheld.
Zhang Chuanjie refused to accept the judgment and appealed to the No. 2 Intermediate People's Court of Shanghai Municipality. In the appeal, he alleged that: Although he concluded the Agreement on Rescission of the Employment Contract through Negotiation with Jinghao Company on January 13, 2014, due to reasons of Jinghao Company, it was until December 2014 when he was appraised suffering from “an occupational disease with disability grade 7.” Jinghao Company's failure to arrange him an off-the-job physical examination violated the relevant provisions of the Law of the People's Republic of China on the Prevention and Control of Occupational Diseases, and the employment contract could not be rescinded before the physical examination. Therefore, Zhang Chuanjie requested the No. 2 Intermediate People's Court of Shanghai Municipality to order that the employment relation between him and Jinghao Company should be resumed from January 13, 2014.
Appellees Jinghao Company and China Shipping Industry Company jointly contended that: Both parties rescinded the employment contract through negotiation, it was appraised that appellant Zhang Chuanjie suffered from “an occupational disease with disability grade 7,” and the rescission of the employment relation did not violate the relevant provisions of the Labor Contract Law. Therefore, they disagreed to resume the employment relation with Zhang Chuanjie. Therefore, the appeal of Zhang Chuanjie was dismissed.
After the trial of second instance, the No. 2 Intermediate People's Court of Shanghai Municipality confirmed the facts found in the trial of first instance.
The issue in this case was whether the rescission of the employment contract through negotiation between the employer and the employee was necessarily effective if the employee engaged in operations with exposure to occupational disease hazards did not receive an off-the-job occupational health examination.
After the trial of second instance, the No. 2 Intermediate People's Court of Shanghai Municipality held that:
In accordance with the provisions of paragraph 1 of Article 42 of the Labor Contract Law, where an employee engaging in operations with exposure to occupational disease hazards did not receive an off-the-job occupational health examination, the employer may not rescind the employment contract in accordance with the provisions of Articles 40 and 41 of this Law. The aforesaid provisions did not exclude circumstances where the employer and the employee rescinded the employment contract through negotiation. However, in accordance with the provisions of Article 36 of the Law of the People's Republic of China on the Prevention and Control of Occupational Diseases, “For employees engaging in operations with exposure to occupational disease hazards, an employer shall organize pre-job, on-the-job, and off-the-job occupational health examination of employees in accordance with the provisions of the work safety administrative department and health administrative department of the State Council and inform in writing employees of the examination results ... and shall not rescind or terminate employment contracts with employees who have not received the off-the-job occupational health examination.” Therefore, it was the statutory obligation of an employer to arranging an off-the-job occupational health examination for employees engaging in operations with exposure to occupational disease hazards and such statutory obligation shall not be necessarily exempted since the employee rescinded the employment contract with the employer through negotiation.
In this case, the Agreement on Rescission of the Employment Contract through Negotiation concluded by and between both parties on January 13, 2014 did not specify that appellant Zhang Chuanjie has known and abandoned the right to receive an off-the-job occupational health examination and Zhang Chuanjie actively required appellee Jinghao Company to arrange an off-the-job occupational health examination for him in a variety of ways. Therefore, Zhang Chuanjie did not abandon the right and Jinghao Company should arrange an off-the-job occupational health examination for him. Before the appraisal conclusion on Zhang Chuanjie's occupational disease was reached, the employment relation between both parties could not be necessarily rescinded.
On December 10, 2014, appellee Zhang Chuanjie was appraised suffering from “an occupational disease with disability grade 7.” In accordance with the provisions of Article 37 of the Regulation on Work-Related Injury Insurance, “Where an employee's disability due to work is appraised to fall in grade 7 to 10, if the labor or employment contract is terminated upon expiration, or an employee himself requests the rescission of the labor or employment contract, a lump-sum work-related injury medical subsidy shall be paid to the employee from the work-related injury insurance funds, and the employer shall pay the employee a lump-sum disability employment subsidy.” Therefore, considering that the employment contract concluded by and between both parties should expire on June 30, 2014 and Zhang Chuanjie was appraised suffering from “an occupational disease with disability grade 7” on December 10, 2014, in accordance with the provisions of the Regulation on Work-Related Injury Insurance, the employer may terminate the expired contract and the employment relation between Zhang Chuanjie and appellee Jinghao Company should be terminated on December 10, 2014.
In conclusion, in accordance with the provisions of Article 36 of the Law of the People's Republic of China on the Prevention and Control of Occupational Diseases, Article 37 of the Regulation on Work-Related Injury Insurance, and item (2) of paragraph 1 of Article 170 of the Civil Procedure Law of the People's Republic of China, on November 12, 2015, the No. 2 Intermediate People's Court of Shanghai Municipality rendered to:
1. Set aside the civil judgment (No. 1021 [2015], First, Civil Division I, Chongming) rendered by the People's Court of Chongming County, Shanghai Municipality.
2. Appellant Zhang Chuanjie and appellee Shanghai Jinghao Labor Service Co., Ltd. shall resume the employment relation for the period from January 13, 2014 to December 10, 2014.
This judgment shall be final.