★Brief
In August 2018, Yu joined a construction engineering company in Shanghai as a project manager.
On August 15, 2018, Yu was assigned by the unit to preside over a construction project constructed by the company locally at a site in the field. Due to the long duration of the project, the company then arranged for Yu to rent a house in his own name in the locality and live with other employees of the company, and the rental costs incurred were paid by the company.
On 1 October 2018, Yu, who was supposed to come on duty, was late and was found dead by his colleagues in the rented house.
After ruling out suicide and homicide, the police issued a certificate of death from sudden illness. The grieving family requested the company to apply for a work injury determination. Although the company did not accept that Yu’s death was a work injury, it was the statutory duty of the employer to apply to the relevant authorities for a work injury determination, so the company submitted an application for a work injury determination to the district labor security administration department.
★Issues
The focus of the case is: Yu belongs to the work-related business trip or stationed outside the normal work?
The company argued: Yu is a long-term employee stationed abroad, not a short-term business trip, he has a fixed commuting time and place of residence, the incident occurred in the off-duty time, the location is not in the workplace, so should not be recognized as a work-related injury.
Ministry of Human Resources and Social Security (MOHRSS) was of the view that the sudden death of Yu during a business trip by the employer was in line with the scope of the work injury.
★The verdict
The case was reviewed and determined by the administrative department that Yu’s situation was a work-related injury. The construction engineering company appealed against the decision and requested the court to set aside the decision being appealed.
After hearing the case, the court held that the entire period of absence from work should be considered as working time and work-related, as long as the employee did not engage in personal activities unrelated to work. Based on the available evidence, it could not be ruled out that Yu’s death was caused by non-work-related reasons, so it should be recognized as a work-related injury according to the law.
★ Comment of Lawyer Tang
This is a case concerning the recognition of work-related injuries.
According to Article 15 of the Regulations on Work-Related Injury Insurance, “An employee shall be deemed to have sustained a work-related injury if he/she has one of the following circumstances: (1) dies of a sudden illness during working hours and at work or dies within 48 hours after rescue; …… If an employee has circumstances (1) or (2) of the preceding paragraph, he/she enjoy work injury insurance treatment in accordance with the relevant provisions of these Regulations.”
To determine whether Yu’s death constitutes a work injury in this case, we should first determine whether it belongs to “working hours” and “working position”.
The company believes that, according to the Ministry of Human Resources and Social Security on the Implementation of the Regulations on Work Injury Insurance (II), Article 5, “the employee is stationed abroad for work reasons, has a fixed residence, has a clear work and rest time, work injury recognition in accordance with the local normal work in the place of residence.” Therefore, it should be excluded from the application of Article 15 of the Regulations on work injury insurance, and should be dealt with in accordance with the normal work situation of the personnel stationed abroad, and should not be recognized as a work injury.
Such an understanding is undoubtedly confusing the concepts of business trip and overseas presence.
A business trip is when an employee is temporarily dispatched by the employer to an area other than his or her permanent residence to attend to official business or take up a temporary position; an overseas presence is when an employee’s workplace is in a foreign country or a foreign country, not in the head office, and is generally a permanent position.
Although the project lasted for a long period of time, it was still a temporary position and the employee would return to the company’s location upon completion. During the business trip, Yu did not engage in personal activities unrelated to his work, so he should belong to the “working time” and “working position”. As for the residence, the unit temporarily arranged for the employees to live together in a rented house, obviously cannot be considered as a fixed residence.
Therefore, the MOHRSS and the Court of First Instance all found that Yu’s death fell within the scope of work injury recognition and should be treated as a work injury and given work injury insurance treatment.
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