Source: Zhonggong. com
Employees who have worked for 11 years are unable to enjoy retirement benefits because the employer has not paid social security for them. After reaching retirement age, employees still work in the original unit until the employer shuts down due to policy reasons. Can the employee’s labor relationship with the employer be determined because he has reached retirement age?
Basic facts
Due to the employer’s failure to pay social security, the workers are unable to enjoy retirement benefits and demand to pay economic compensation.
In June 2009, Jia entered a chemical company and the two sides did not sign a labor contract. Until April 1, 2016, both parties signed a labor contract with the term from April 1, 2016 to July 4, 2009. On July 3, 2019, Jia was 60 years old and reached retirement age. After the expiration of this labor contract, Jia has been working in a chemical company. During this period, a chemical company has not paid social insurance premiums for Jia. From January 2011 to May 2020, a chemical company paid work-related injury insurance for Jia.
In December 2020, a chemical company shut down the 4.3-meter coke oven on time according to the notice of the local government, and dismissed Jia. Jia’s salary will be paid until January 2021.
After being dismissed, Jia applied to the local labor and personnel dispute mediation and arbitration commission for arbitration, requesting to confirm the labor relationship between the two parties, and a chemical company paid social insurance premiums and economic compensation for himself. The Labor Arbitration Commission issued a Notice of Non-acceptance on the grounds that Jia was over the statutory retirement age and the subject was not qualified. Since then, Jia has filed a lawsuit in the local court, demanding confirmation of the existence of labor relations between the two parties from June 2009 to December 31, 2020; A chemical company paid Jia the basic old-age insurance premium for employees from June 2009 to December 31, 2020, and paid the economic compensation of 30,000 yuan during this period. Jia also pointed out that if a chemical company can’t pay the basic old-age insurance for its employees, the company should bear the losses.
After the case went through the first and second trial procedures, the court ruled that Jia had a labor relationship with a chemical company from June 2009 to December 31, 2020; A chemical company paid Jia an economic compensation of 30,000 yuan within 10 days from the effective date of the judgment.
employer
Employees have reached retirement age, and both parties’ claims for labour relation employees have exceeded the statutory time limit.
In the lawsuit, a chemical company argued that Jia was 60 years old on July 3, 2019 and reached the legal retirement age. Since then, the labor contract between the two parties has been terminated automatically, and there is no labor relationship, but labour relation. On July 4, 2019, the relationship between the two parties has changed from labor to labour relation. If Jia believes that his rights have been infringed, he should apply for arbitration before July 3, 2020, but he did not claim his rights until 2021, which has exceeded the arbitration limitation of one year. At the same time, Jia’s claim for paying economic compensation has therefore exceeded the statute of limitations.
first trial
If the employee continues to work after the expiration of the labor contract, the employer may consider the contract to continue to be performed without objection.
The court of first instance held that labor relations refer to the rights and obligations arising from employing workers as its members and providing paid labor under the management of employing units. According to Article 7 of the Labor Contract Law of People’s Republic of China (PRC), "The employing unit establishes labor relations with workers from the date of employment", Jia joined a chemical company in June 2009, and signed a labor contract on April 1, 2016 from April 1, 2016 to July 4, 2019, and a chemical company paid Jia work-related injury insurance from January 2011 to May 2020. Both parties, After the expiration of the labor contract, the two parties did not terminate the labor relationship. Jia worked until December 31, 2020, and a chemical company stopped production for policy reasons, and the two parties terminated the labor relationship. Jia asked for confirmation (from June 2009 to December 31, 2020) that there was a labor relationship between the two parties, and our hospital supported it.
According to the arguments of both parties, the court held that there were three controversial points, namely, whether Jia’s application for arbitration exceeded the time limit for arbitration; Whether a chemical company should pay economic compensation to Jia for the termination of labor relations; Whether Jia’s claim to pay the basic old-age insurance premium during the working period, if the loss caused by failure to pay back, is established by a chemical company.
On whether Jia’s application for arbitration exceeds the time limit for arbitration. Jia terminated his labor relationship with a chemical company on December 31, 2020, and applied for arbitration on March 1, 2021 due to disputes over related rights. According to the first paragraph of Article 27 of the Labor Dispute Mediation and Arbitration Law of People’s Republic of China (PRC), the limitation period for applying for arbitration of labor disputes is one year, counting from the date when the parties know or should know that their rights have been infringed. Therefore, Jia’s application for arbitration did not exceed the time limit for arbitration, and the opinion that a chemical company defended the plaintiff’s time limit for arbitration was not accepted.
Whether a chemical company should pay economic compensation to Jia for the termination of labor relations. A chemical company should terminate the labor contract after the expiration of the labor contract (that is, when Jia reached the age of 60) in accordance with the relevant provisions of the implementation regulations of the Labor Contract Law, but failed to terminate the labor contract in time. According to Article 34 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases, if the laborer still works in the original employer after the expiration of the labor contract, and the original employer does not raise any objection, it shall be deemed that both parties agree to continue to perform the labor contract under the original conditions. In this case, the labor relationship between Jia and a chemical company was actually fulfilled until a chemical company was shut down, that is, terminated on December 31, 2020. Jia worked in a chemical company for 11 years and 7 months. Because a chemical company failed to pay social insurance premiums to Jia, so that Jia could not enjoy the basic old-age insurance benefits, he should pay economic compensation according to law. The economic compensation is paid to the employee according to the number of years he has worked in this unit and the standard of paying one month’s salary for each full year. For more than six months but less than one year, it shall be counted as one year; If it is less than six months, the employee shall be paid economic compensation of half a month’s salary, and the maximum period for paying economic compensation shall not exceed twelve years. The monthly wage refers to the average wage of workers in the twelve months before the dissolution or termination of the labor contract. The bank account transaction submitted by Jia showed that the average salary in the five months before the termination of the labor contract was 3409.2 yuan. A chemical company did not submit relevant evidence of Jia’s monthly salary standard.Now Jia advocates calculating compensation according to the average monthly salary of 2,500 yuan, and advocates that the economic compensation for terminating the labor contract is 30,000 yuan (2,500 yuan/month ×12 months), which does not violate the law and is supported.
On the third controversial point. The court held that it is the legal obligation of the employer to pay social insurance premiums for employees, and the employer should pay social insurance premiums in full and on time; If the employer fails to pay social insurance premiums in full and on time, the social insurance collection agency shall order it to pay or make up within a time limit. Jia’ s request belongs to the management of the administrative department and does not belong to the scope of acceptance by the people’ s court, so it will not be handled.
Accordingly, the court’s first-instance judgment confirmed that Jia had a labor relationship with a chemical company from June 2009 to December 31, 2020; A chemical company will pay economic compensation of 30,000 yuan to Jia within 10 days from the effective date of the judgment.
second trial
Failure to pay social security for employees requires payment of economic compensation.
After the judgment of the court of first instance, both parties refused to accept it and appealed. However, neither party submitted new evidence to the court.
The court of second instance held that regarding the starting and ending time of the labor relationship between Jia and a chemical company, according to Article 32 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases, "if an employer has an employment dispute with its employees who have enjoyed pension insurance benefits or received pensions according to law and bring a lawsuit to the people’s court, the people’s court shall handle it according to labour relation". In this case, a chemical company did not pay old-age insurance to Jia, and Jia did not enjoy old-age insurance benefits or receive a pension after reaching retirement age. After the expiration of the labor contract on July 4, 2019, Jia still worked in a chemical company until December 31, 2020, when a chemical company was shut down due to policies. According to Article 34 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases, "After the expiration of the labor contract, the laborer still works in the original employer, and if the original employer does not raise any objection, it is deemed that both parties agree to continue to perform the labor contract under the original conditions; If one party proposes to terminate the labor relationship, the people’s court shall support it. " Therefore, the first-instance judgment found that Jia had a labor relationship with a chemical company from June 2009 to December 31, 2020, and there was nothing wrong with it.
On the limitation of action. Jia terminated the labor relationship with a chemical company on December 31, 2020, and Jia applied for labor arbitration on March 1, 2021, which did not exceed one year’s arbitration limitation.
About whether a chemical company should pay Jia’s economic compensation and the amount. Because a chemical company failed to pay old-age insurance to Jia, according to the provisions of People’s Republic of China (PRC) Labor Contract Law, a chemical company should pay Jia economic compensation.
In addition, Jia asked a chemical company to compensate for the loss of pension insurance. As the payment of social insurance does not fall within the scope of acceptance by the people’s court, and Jia did not submit evidence to prove that the social insurance agency could not reissue the evidence that caused him to be unable to enjoy social insurance benefits, this request was not handled by our hospital.
The court of second instance rejected the appeals of both parties and upheld the original judgment.
(According to Hebei Workers’ Daily, Hebei Workers’ Daily reporter Ha Xin)
Editor in charge: Yao Yimeng
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