★Nutshell
On June 25, 2017, Mr Li downloaded a take-out platform app and applied for the “employment”. After completed the authentication and training on line, on June 28, 2017, Mr Li signed the confirmation at the offline store and become one of the registered crowdsourcing riders of the take-out platform. No employment contract has been reached by both sides, and the registration agreement signed by Mr Li indicates that he has no employment or labor relation with the take-out platform.
Mr Li’s major job responsibility is to apply to the platform app for the delivery order.
And he will get paid the price suggested in the delivery order after completed the delivery.
Unfortunately, on November 23, 2017, he slipped down during delivery and broke his leg, leaving a comminuted fracture of his left patella.
Mr Li thought it was his misfortune to tumble carelessly. There is nothing to do with anyone else. But at hospitalization, his roommate told him since his job was to deliver the orders given by the platform, which means he works for the platform, it should compensate for his accidental injury happenedduring his work.
“There’s no harm in trying” , Mr Li thought, and then, he claimed to the court.
★Issue
The issues of this case are:
Is there any labor relationship between Mr Li and the platform operating company?
Should the company undertake the employer’s liability?
Mr Li thinks although no written employment contract has been signed, in fact, it can be seen that the labor relationship between both sides has been actually formed according to the employment mode, the daily work mode, the salary settlement mode, and so on.
The company thinks there is no managing-managed or dominating-dominated relationship existing between both sides. And it should be regarded as a contractual intermediate service relationship.
★Judgment
The court holds that whether it can be constituted as a labor contract relationship depends on the work arrangements, the personal arrangements, the salary settlement and so on
As for the work arrangements, the platform had never arranged or assigned the rider to take any delivery order. Whether to take an order or which order to take depends on the rider himself. As for the personal arrangements, the platform had never provided any delivery tools, and had no requirement of working time or working area.
As for the salary settlement, the catering owners deposited the delivery fee in advance on the platform, and then, after finished the order, the rider can draw the cash by himself. So, it can’t be determined that the rider is paid from the platform.
Therefore, what the platform provides is intermediary services. Mr Li’s claim on the platform for the victim liability of the service receiver has no legal basis.
★Comment by Lawyer Tang
This dispute is arised from the identification of the employment nature on platform.
In recent years, with the continuous developing of network technology, a large number of internet service platforms are springing up.
Such platforms use big data to connect the supplier and the demander, and have greatly improved the efficiency of social production. At the same time it also created new forms of employment, which brings new challenges to the traditional employment relationship. In terms of the take-out platforms, its labor forms of delivery service mainly include catering business employment, take-out platform employment, crowdsourcing and outsourcing and some other modes. Each of these labor forms has its own corresponding labor relationship.
Among them, the crowdsourcing mode is different from the outsourcing mode. The outsourcing mode focuses on the integration of external resources, which means the company could use this mode to integrate and utilize external specialized resources to cut down the cost and increase the efficiency. In the outsourcing mode, the takeout platforms divide their business scope into several regions in general. Each region has its own delivery service supplier. The supplier shall recruit riders by themselves, and arrange the riders to complete the delivery task. The crowdsourcing mode means the platform company outsources the delivery service to the unspecified public which was performed by its internal employees in the past on a flexible and voluntary base.
Under this circumstance, the platform works as an intermediary services provider, and the delivery service is supplied by the riders and demanded by the catering businesses.
In this case, the platform works in a typical crowdsourcing mode.
The platform works as a intermediary agent to introduce the information of the delivery demand from the catering businesses to the riders and help them to conclude contracts. The catering businesses deposited the distribution fee in advance on the platform, and then, after finished the order, the rider can draw the fee form the platform by himself anytime.
As a rider like Mr Li, what can he do to protect his legal right?
It is a feasible proposal to buy a supplement accident insurance through the platform or by himself. Due to the characteristics that the riders are prone to the accidents for the coming deadline of the delivery order, many of the take-out platforms force their riders to buy accident insurance. But generally, such insurance benefit is too little for the rider to cover the actual loss when the accident happened. So, the riders had better purchase some commercial insurance to protect themselves.
Moreover, on account of the increasing number of riders, we would like to appeal to the legislators to take their interests into account, and give them broader security guarantee at the legislative level, such as providing a special insurance similar to the work-related injury insurance for the riders or the platforms to buy.
Recent Comments