Is There Labor Relation between Employee with Injury and Transport Company?

★Nutshell

Mr Zhang works for a transport company without a written contract and social insurance. All the employees in this company are paid in cash with a signature upon receiving and they need to punch in for attendance.

On April 6^th,2016, Mr Zhang broke his toe on the right foot by a falling object during transporting. Mr Zhang considered it a work-related injury and asked the company to report it. As the company did not buy social insurance for Mr Zhang, therefore it refused to report work-related insury.

Mr Zhang applied himself afterwards. During the investigation by the Labor Administrative Department, the transport company denied the labor relation. Therefore Mr Zhang applied the labor arbitration to confirm the labor relation between himself and the transport company.

★Issue

The transport company thinks according to the principle of who proposes who proves, Mr Zhang shall bear the responsibility to prove the labor relation. Therefore there is no labor relation due to no evidence is presented in the court.

Mr Zhang thinks the prima facie evidence shall be the income transfer and punch in attendance which is kept by the company. The company shall bear the negative result for it once and again reject the arbitration to provide the above evidence.

★Judgment

The arbitration thinks Mr Zhang has already provide the prima facie evidence to prove labor relation. As an employer, the transport company shall further provide the income transfer and punch in attendance. The company shall bear the negative result for it once and again reject the arbitration to provide the above evidence.

★Comment by Lawyer Tang

This is a case on confirming labor relation due to work related injury.

Issue of this is on the distribution of evidential burden, especially on employer. Article 13 of the Regulation on Labor Disputation Arbitration Ruling: the employer shall provide the evidence kept by him that is related to the issue; the employer shall bear the negative result if he rejects to provide. Art 14 says: when the evidential burden cannot be distributed upon Art 13 or other regulation, the arbitration can distribute the evidential burden with the consideration of the comprehensive ability, principle of fairness and honesty, etc.

The employer shall prove it not meet the qualification of an employing subject, its business scope. The employer shall provide the negative evidence of not qualified as an employing subject, such as the employee did not reach the legal employment age, or has a special identity to exclude labor relation.

The employer has already the prima facie evidence on the formation of the labor relation, therefore the employer shall bear the responsibility to provide the negative evidence to deny the labor relation, such as the employee is not under the management; the labor provided by the employee is not in the business scope; the employee’s income is not a salary, etc.

As to the documents kept by the employer, the employer shall bear the evidential burden such as income transfer record, social insurance record, recruitment registration, attendance record, etc.