1. Life Cases:
In December 2004, Mr. Liu was hired as a road maintenance worker in a highway service center. On January 8, 2015, the original two parties signed the "Maintenance and Employment Contract", which stipulated the contracted road section, maintenance tasks, task standards, contracting time, responsibilities of all parties, work remuneration, etc. During the work period, a highway service center paid wages to Liu on a monthly basis according to the salary payment roster made by the road shift leader on a monthly basis. On March 12, 2015, Liu reached the statutory retirement age. On October 17, 2019, Mr. Liu filed an application for labor arbitration, requesting an award to confirm the employment relationship. On September 25, 2020, the arbitration commission did not support Liu's claim on the grounds that the statute of limitations for arbitration had expired.
Liu believes that he continued to petition the relevant departments to claim his rights from the date of his retirement, and only asserted his rights through litigation when the claims were not realized, and in this process, it was fully in line with the interruption or suspension of the statute of limitations stipulated by law.
A highway service center said that due to the long mileage of the maintenance highway in the jurisdiction and the small number of employees in the center, it was impossible to successfully complete the road maintenance task in the jurisdiction, so part of the maintenance of the highway section was contracted to the nearest villagers (Liu, etc.), because the fixed road section was contracted to Liu for maintenance at a fixed cost, and Liu brought his own tools to arrange the time for the maintenance of the contracted road section. Therefore, the relationship between the Center and Mr. Liu was a labor contract. Moreover, before Liu initiated labor arbitration, he never went to the center to assert his rights.
II. Trial Results:
First-instance judgment: The claim was dismissed.
The court of first instance held that, according to Article 27 of the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes, "the limitation period for applying for arbitration of labor disputes is one year. The limitation period for arbitration shall be calculated from the date on which the parties knew or should have known that their rights had been infringed. The statute of limitations for arbitration provided for in the preceding paragraph shall be interrupted when one of the parties claims rights against the other party, or requests rights and remedies from the relevant authorities, or the other party agrees to perform its obligations. From the time of interruption, the arbitration limitation period is recalculated. Where the parties are unable to apply for arbitration within the limitation period provided for in paragraph 1 of this Article due to force majeure or other legitimate reasons, the limitation period for arbitration shall be suspended. From the date on which the reasons for the suspension of the statute of limitations are eliminated, the limitation period for arbitration shall continue to be calculated, and if a dispute arises during the existence of the labor relationship due to arrears of labor remuneration, the employee's application for arbitration shall not be subject to the limitation period for arbitration as provided for in the first paragraph of this Article;However, if the labor relationship is terminated, it shall be filed within one year from the date of termination of the labor relationship. ”
In this case, Liu failed to provide evidence to prove that the statute of limitations was interrupted or suspended, and he did not file an arbitration application until October 2019, which exceeded the statute of limitations, so Liu's claim was not supported.
The court of first instance ruled that Liu's claim was rejected.
Second-instance judgment: The appeal was rejected and the original judgment was upheld.
The court of second instance held that:
1. On the issue of whether there is a labor relationship between Liu and a highway service center.
Referring to the Notice of the Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations, "if an employer recruits a worker without a written labor contract, but at the same time meets the following circumstances, the labor relationship shall be established." (1) The employer and the worker meet the qualifications of the entity as prescribed by laws and regulations;(2) The labor rules and regulations formulated by the employer in accordance with the law shall apply to the workers, and the workers shall be subject to the labor management of the employer and engage in paid labor arranged by the employer;(3) The labor provided by the worker is an integral part of the employer's business", the labor relationship is a relatively stable relationship of rights and obligations with labor content formed between the worker and the employer.
In addition to the legal qualifications of both parties, the establishment of an employment relationship requires the employer and the employee to reach an agreement on the establishment of an employment relationship, and both parties have a subjective desire to establish a long-term and stable employment relationship, which is a subjective requirement for the establishment of an employment relationship.
Second, when the employee provides labor to the employer, and the employer pays the labor remuneration to the employee, the worker must obey the employer's arrangement, accept the employer's management, and abide by the employer's rules and regulations. In addition to the lack of a legal and effective written labor contract, the establishment of a de facto employment relationship should also comply with the above-mentioned characteristics of the employment relationship.
In this case, after Mr. Liu signed a "maintenance and employment contract" with a highway service center, Mr. Liu provided labor for a highway service center, and the highway service center paid wages and remuneration to him, but neither party provided evidence to prove that the labor rules and regulations formulated by the employer in accordance with the law applied to the workers, which could not reflect that the two parties had personal subordination. Therefore, although Liu and a highway service center both have the qualifications of the subject of labor relations, and the work engaged in by Liu is also an integral part of the business of a highway service center, the two parties have no personal affiliation and do not conform to the essential characteristics of labor relations, so there is no labor relationship between Liu and a highway service center.
2. On the issue of whether Liu's lawsuit exceeded the statute of limitations for arbitration and litigation.
After reaching the statutory retirement age on March 12, 2015, Liu filed an arbitration application in October 2019, which exceeded the one-year limitation period for applying for arbitration of labor disputes.
The court of second instance rejected the appeal and upheld the original judgment.
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