It is common for employees to take sick leave during work, but a company in Ningbo stopped paying wages and social security a few days after an employee was hospitalized for lung cancer. In desperation, the client went to the legal aid center for help...

It is common for employees to take sick leave during work, but a company in Ningbo stopped paying wages and social security a few days after an employee was hospitalized for lung cancer. In desperation, the client walked into the Legal Aid Center for help...

Yesterday, the staff of the Ningbo Legal Aid Center told reporters the whole story of this case.

was hospitalized due to lung cancer.

The company stopped social security and wages the next month.

Wang Gang is a driver. In 2012, he joined a company in Ningbo as a driver.

In January 2015, Wang Gang signed a two-year labor contract with the company, with the agreed period ending on December 31, 2017.

Unexpectedly, at the end of September 2017, Wang Gang was hospitalized due to illness and was diagnosed with advanced small cell lung cancer. He was discharged from the hospital after treatment, but his condition was not effectively controlled and he was readmitted to the hospital in mid-December of the same year.

Starting from October of that year, the company stopped paying social security for Wang Gang and stopped paying Wang Gang’s salary.

Wang Gang requested compensation from the company, but was rejected. Wang Gang fell ill and was hospitalized, which cost a lot of money and his life was in trouble. After being guided by enthusiasts, Wang Gang came to the Ningbo Fenghua District Legal Aid Center to apply for legal aid. The company paid a one-time payment of 30,000 yuan. The

Legal Aid Center assigned lawyer Chen Haiming from Zhejiang Qiu Shixing Law Firm to handle the case. When

the assistance lawyer met with Wang Gang for the first time, he conducted a detailed analysis of the case and provided Wang Gang with two options:

One is to choose to continue to perform the labor contract, and the company can require the company to pay back social security and pay sick leave wages ;

The second is to choose to terminate the labor relationship. Since the company has not paid social security for Wang Gang, Wang Gang terminates the labor relationship on this ground and can receive economic compensation . At the same time, the company can be required to pay sick leave wages no less than 80% of the minimum wage, make up social security payments and pay a one-time living allowance.

After repeated deliberation, Wang Gang finally agreed to implement the second plan. After determining the plan, the assisting lawyer drafted legal documents in a timely manner and filed an arbitration with the Ningbo Fenghua District Labor and Personnel Dispute Arbitration Committee.

Before the arbitration hearing, the arbitrator conducted mediation in advance, but the two parties were unable to reach an agreement because the gap was too large. The arbitration committee made an arbitration decision and supported Wang Gang’s arbitration request. The company

was dissatisfied with the arbitration and filed a lawsuit with the People's Court of Fenghua District, Ningbo City. The People's Court of Fenghua District rejected the company's petition and supported Wang Gang's request in accordance with the law. In the end, the two parties reached a settlement, and the company paid Wang Gang a one-time payment of 30,000 yuan to end the case.

Case Key Issues

Assistance Lawyer Analysis: The key to this case is to determine when the labor relationship between Wang Gang and the company will be terminated.

Company believes that the labor relationship with Wang Gang was terminated on October 10, 2017. The reason is that Wang Gang made a verbal phone call to the company's human resources department to ask for leave on October 10, 2017, and provided call records and worker testimony.

’s assistance lawyer proposed that the time for the termination of the labor relationship between the two parties should be January 16, 2018. The reason is that Wang Gang notified the company to terminate the labor relationship on January 14, 2018 for the reasons such as the company’s failure to pay social security for himself and failure to pay sick leave wages in full on time. Relationship, the company received it on the 16th of the same month. According to the relevant provisions of the Contract Law, the termination notice shall take effect when it is delivered to the other party. This fact was also found out during the trial.

The sick leave period is shorter than the medical period ,

The employer is not allowed to terminate the labor contract

After clarifying when the labor relationship will be terminated, the company's issues regarding sick leave wages, economic compensation, one-time living allowance, and back payment of social security "due to Wang Gang's own The defense of "offering resignation" becomes feeble.

How many months can Wang Gang take sick leave? According to social security payment records, Wang Gang has been paying for 13 years and has worked in the company for more than 5 years. According to regulations: When an enterprise employee needs to stop work for medical treatment due to illness or non-work-related injury, “if the actual working years are more than ten years, six months if the actual working years in the unit are less than five years; "Nine months", Wang Gang's medical treatment period should be nine months. Wang Gang's actual sick leave period was less than 9 months.

"Sickness leave wages shall not be less than 80% of the minimum wage standard determined by the local people's government", Wang Gang's sick leave wages should be calculated based on 80% of the minimum wage.

The medical period is based on sick leave. When the employee's sick leave period is shorter than the medical period, the employer is not allowed to terminate the labor contract. When the sick leave period is longer than the medical period, the employer has the right to terminate the labor contract.

In terms of economic compensation, based on Wang Gang’s actual working years in the company of 6 years and 16 days, the company should pay Wang Gang 6.5 months’ salary as economic compensation.

In addition, the company needs to pay Wang Gang a living allowance and make up social security contributions.

Warm reminder:

center staff also remind workers that when they need sick leave, they must promptly submit a sick leave certificate issued by a regular hospital to the employer, and keep evidence that the employer has received the sick leave certificate in case of emergencies. need.

Source: Ningbo Evening News (nbwanbao) reporter Wang Ying has been authorized to reprint

Editor: Guangzhou Daily All Media

(Source: Guangzhou Daily)