Original title: Who is responsible for workers installing doors and windows falling from the fifth floor? (Theme).
Labor injury disputes are difficult to decide, and the mediation case is closed (subtopic).
Reporter Zhang Wei.
With the rapid development of the economy and society, the number of labor relations has gradually increased, and the number of cases of disputes over the liability of labor service providers has also increased. How to claim rights if you go to work on a construction site through an acquaintance, have no fixed working period, do not sign a labor contract, do not pay social insurance, and have suffered damage in the process of providing labor services? Judicial offices at all levels, police stations and other departments in Shanghai actively conducted joint investigations to correctly clarify the legal relationship between all parties, and determine the subject and scope of liability for damages, so that people who came to work in other places felt cared for.
In August 2023, the mediation studio of the People's Mediation Committee of Dachang Town, Baoshan District, Shanghai received an application for mediation of a dispute over the liability for injury of a worker. In July 2018, in the process of installing doors and windows for customer Wang, Ma and Xu fell from the fifth floor due to Xu's improper operation, resulting in a fracture of the left bone.
The parties did not sign an employment contract.
The injured Xu believed that he was injured when installing doors and windows for Wang, and Wang should compensate him, while Ma was his boss and should also bear the responsibility for compensation, and because of his injury, he had not been able to find a job in recent years and had difficulties in life, so Ma and Wang had to compensate themselves another 200,000 yuan. Ma believes that he cannot shirk his responsibility, but Xu was injured while working at Wang's house, and Wang should also bear part of the responsibility. Wang believes that Ma's installation of doors and windows for him is a contract relationship, and he is not at fault and does not need to be liable. After understanding the ins and outs of the incident, the mediator drafted a mediation plan around the focus of the parties' disputes, making it clear that this case was a dispute involving contracting and personal labor.
First of all, the mediator pointed out that Ma and Xu did not sign an employment contract, and could not prove that the two parties had reached an agreement to establish an employment relationship. However, Xu was hired by Ma and Xu provided labor services, and a labor relationship was formed between the two parties. In the labor relationship, Xu, who provided the labor services, was injured due to the labor services, and Ma, who received the labor services, should be held liable according to their faults. According to the provisions of the Civil Code, Ma did not provide Xu with any safety protection measures at work, such as safety helmets and safety ropes, which caused Xu to work with his bare hands at high altitudes, so Ma should bear part of the responsibility. Xu, as a person with full capacity for civil conduct, knew that there were potential safety hazards in high-altitude work, but did not wear any safety protection measures, and he was lucky, and he was also at fault, and he should also bear part of the responsibility.
Secondly, regarding the scope of damages, the mediator explained to Xu that the Supreme People's Court has specific provisions on compensation items such as lost work expenses and transportation expenses, and claims that the expenses need to provide corresponding bills and vouchers as evidence, and cannot be said to be 200,000 yuan out of thin air. The mediator persuaded Xu that even if he went to the lawsuit, the court could not support all the evidence. According to experience, if the degree of injury does not cause serious consequences such as disability, the amount of compensation is about tens of thousands of yuan.
Is the customizer responsible?
In addition, in response to Ma and Xu's request that Wang should also bear part of the responsibility, the mediator patiently explained to both parties that according to the provisions of the Civil Code: "If the contractor causes damage to a third party or its own damage in the process of completing the work, the contractor shall not bear tort liability." However, if the person making the order is at fault for the ordering, instruction or selection, it shall bear the corresponding responsibility. "Ma installed doors and windows for Wang, which belongs to the contract relationship, Wang is the customizer, Ma is the contractor, unless Wang is at fault for Ma's choice or instructions, otherwise in the contracting relationship, the contractor should be liable for damage in the process of completing the work. According to the description of the circumstances of the case by the three people, Wang did not choose a contractor or give wrong instructions, so Wang should not be liable for damages in this incident. After explaining the law and reasoning, Ma and Xu gave up continuing to pursue Wang's responsibility.
After mediation, Ma and Xu reached the following agreement: Ma shall bear the medical expenses, nursing expenses, and nutrition expenses incurred after Xu's injury, and compensate Xu for the salary of 20,000 yuan for the five months after his injury, which has been paid in the early stage; Ma agreed to compensate the respondent Xu with a lump sum of 30,000 yuan on the basis of the above-mentioned expenses, and the payment was completed on the day of mediation; Xu promised to give up pursuing Ma's other legal responsibilities and no longer interfere with Ma's life and business activities.
Case Reviews. In this case, the gap between the expectations of the two parties on the amount of compensation was too large over the years, resulting in many unsuccessful negotiations, and the respondent visited the site many times, which may intensify the conflict if it is not handled in a timely manner or improperly. In view of the fact that both parties are acquaintances, the mediator first adopts a "back-to-back" approach to persuade the parties, so that both parties can "compare their hearts with their hearts" and think about the problem from the other party's standpoint. At the same time, the pros and cons of mediation and litigation procedures were explained in detail to the parties, the psychological expectations of the injured Xu were reduced, the reference basis for compensation was helped, a reasonable mediation plan was formulated, and the differences between the two parties were gradually narrowed through the combination of law and reason, and finally the mediation was successful and the contradictions and disputes were resolved.
*: Shanghai Legal News.