In recent years, I have handled many cases about whether the takeaway brother is determined to be an employment relationship, but in fact, no lawyer in this kind of case can directly tell you the accurate answer when he hears such a "yes" question, and it is all based on the specific circumstances of the case to make a judgment.
The circumstances that give rise to such lawsuits are relatively fixed, such as dismissal, work-related injury, salary deduction, social security, and conflict with colleagues or leaders. However, in such cases, there is often no direct employment relationship in terms of "appearance", and the platform or the employer often circumvents the employment relationship at various levels and reduces its own liability.
Is there no labor relationship between the delivery person and the platform or the platform employer?The conclusion is: not necessarily.
Taking the case handled by this lawyer as an example, from the initial contact with the delivery person, the first judgment criterion is often given: management and being managed, which can be preliminarily divided into personality subordination, economic subordination and organizational subordination.
Personality subordination can be judged according to the following details: whether you can freely choose to receive orders, whether there are online order requirements, whether attendance, whether there are delivery service rules, whether the order is sent fixedly, whether the rules and regulations of the enterprise are applicable, whether the delivery task is supervised, etc.
The economic subordination mainly considers the following points: how to formulate the standard of distribution service fee settlement, how to settle service fees, settlement cycle, whether it is the stable main income of the delivery staff**, and the means of production mastered by the platform.
The subordination of the organization mainly depends on whether it is incorporated into the entire enterprise organization, whether it engages in external services in the name of the platform, etc.
The first conclusion can be made based on the above judgment from the perspective of attributes: whether it is an employment relationship.
According to the cases handled by this lawyer, the delivery workers who advocate the establishment of an employment relationship still have the color of labor relations, and they can eventually be recognized as labor relations. However, this is not the final judgment of the case, the lawyer cannot judge the final result of the case only from the oral content of the party, the litigation depends on the evidentiary materials, and depends on whether the party has the corresponding evidence to prove it, otherwise the legal consequences of failing to present evidence cannot make an accurate judgment.
Attached are effective judgment documents (excerpts) and the content of the judgment