contract dispute
Case analysis of double compensation wage and industrial injury
Date:2019-11-20 14:34:07 | Visits:

Case analysis of double compensation wage and industrial injury

Qi entered a textile company in Wujiang City in May 2017, with a salary of 3000 yuan / month, and no written labor contract signed. In December 2017, Qi's right hand was involved in the machine at work, resulting in the loss of four fingers except the thumb and most of the palms. After being identified as work-related injuries, Qi's injuries were identified as six levels of disability. Qimou filed a labor arbitration in August 2017, requiring the company to pay 42000 yuan of double wage up to the date of arbitration, and more than 300000 yuan of one-time disability allowance, medical treatment allowance, employment allowance, etc. The company thinks that when Qi Mou arrives at the company, the company once proposed to sign a written labor contract with him, which is Qi Mou's unwillingness to sign, and now there is no reason to ask for double wages. In addition, Qi was injured intentionally, which was not a work-related injury. The company said that not long before Qi's work-related injury, Qi's cousin, who was also working in the company, also suffered a work-related injury. At that time, Qi's cousin was slightly injured and his little thumb was missing. Later, Qi's father came out to coordinate compensation with the company, and the company paid nearly 100000 yuan of compensation. The company thought of this, and made the following Doubt it. There is a dispute between the two parties.

Lawyer analysis:

1. Should we pay double wages?

According to the labor contract law, a written labor contract shall be concluded within one month from the date of employment in order to establish a labor relationship; otherwise, the employer shall pay twice of the monthly wage to the laborer for more than one month but less than one year from the date of employment. That is to say, without a written labor contract, workers can claim double wages for up to 11 months.

Is the company's defense that Qi is not willing to sign a written labor contract and should not pay double wages established? Article 5 of the regulations for the implementation of the labor contract law has made special provisions. If the laborer does not enter into a written labor contract with the employer, the employer shall notify the laborer in writing to terminate the labor relationship. In this case, Qi did not agree to sign a written labor contract, but the company did not propose to terminate the labor relationship with it, acquiesced in the act, which was a waiver of its own rights, so the company had no legal basis for filing the defense.

In this case, the company shall pay 33000 yuan of double wage difference for a certain 11 months, instead of 42000 yuan as of the date of arbitration.

2. What's your opinion on the defense that the accident mentioned by the company is caused by Qimou on purpose and does not belong to industrial injury?

According to Article 16 of the regulations on work related injury insurance, self mutilation or suicide is not work related injury. If Qi intentionally put his hand into the machine to cause injury in order to get compensation, it does not belong to work injury. How to deal with the dispute between the laborer and the employer? According to the second paragraph of Article 19 of the regulations on work related injury insurance, if the employee or his close relatives think it is a work-related injury and the employer does not think it is a work-related injury, the employer shall bear the burden of proof. Therefore, the company should provide evidence on the fact that Qimou intentionally caused injury, rather than just subjective inference. Here, the lawyer reminds you that if there is a dispute about whether it belongs to work-related injury, it should be raised in the process of work-related injury identification, but it is meaningless to raise it in the process of labor dispute arbitration after the work-related injury identification has taken effect. Therefore, the company's defense is untenable, and the company shall pay various industrial injury compensation according to law.

Jiangsu dongdazhou law firm

Lawyer Liu Jian
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