How to deal with the diagnosis of occupational disease after the negotiated termination?
Case Introduction
Xie was engaged in wind drill work in a mining company, and the two sides signed a labor contract with a service period from December 2008 to December 2011. in May 2011, Xie was diagnosed with ? Occupational deafness is suspected. In July 2011, Xie filed an application and signed a "Negotiation Agreement on Termination of Labor Contract" with the company, agreeing to make a one-time compensation for the termination of the labor contract relationship (including one-time economic compensation, medical expenses and medical subsidies, sick leave wages, etc.)*** amounting to 30,000 yuan. in June 2011, due to the mining company issued Xie's occupational history of less than 3 years of continuous noise operation work experience, resulting in his August of the same year, being arrested by the mining company. resulting in his being diagnosed by the province's Labor Health Occupational Disease Prevention and Control Institute in August of the same year as ? Not found occupational noise deafness? Until March 2012, Xie was diagnosed as ? Occupational noise deafness (mild)? In May 2012, Xie applied to the Labor Dispute Arbitration Commission for arbitration, requesting confirmation of the invalidity of the Agreement on Negotiated Termination of Labor Contract, restoration of the labor relationship and compensation for related treatment. The arbitration committee decided not to accept, Xie then sued to the court.
Decision of the first instance
1, the judgment of the "Agreement on Negotiation on Termination of Labor Contract" is valid;
2, the mining company to pay Xie a one-time disability benefit and wage compensation during the period of suspended pay *** totaling 36,850 yuan;
3, dismissed Xie's other litigation requests.
After the first instance judgment, Xie was not convinced and appealed.
The second instance judgment
Dismissed the appeal and upheld the original judgment.
First, the negotiated termination of the labor contract of the validity of the act
The Supreme People's Court on the trial of labor disputes on the interpretation of the law applicable to a number of issues (3), Article 10, paragraph 1, provides that the worker and the employer on the termination of the labor contract for the relevant formalities, the payment of wages and remuneration, overtime, economic compensation or indemnity, etc., the agreement reached by the employer. If the agreement reached between the worker and the employer on the termination of the labor contract, the payment of wages and remuneration, overtime pay, economic compensation or indemnity, etc., is not in violation of the mandatory provisions of the laws and administrative regulations, and is not fraudulent, coercive, or exploitative, it shall be deemed valid. Xie mou was checked out suspected occupational deafness in the case of its response to the final diagnosis of occupational disease with foresight, its consideration of their own condition does not have to continue to engage in mining work, proposed and agreed to terminate the labor contract with the mining company agreement, should be the two parties. The true meaning of the expression, does not violate the mandatory provisions of laws and administrative regulations, and Xie can not provide evidence to prove that the agreement has fraud, coercion, or multiplying the situation, so the agreement was established and legally valid, legally binding on both parties.
Second, Xie and the mining company's labor relations to restore the problem
According to the December 31, 2011 implementation of the revised "Chinese people's *** and the prevention and treatment of occupational diseases law" Article 56 (2) and "Chinese people's *** and the labor contract law" Article 42 (1) of the provisions of the unit in the diagnosis or medical treatment of patients with suspected occupational diseases, or the medical treatment of patients with suspected occupational diseases. Article 42(1) of the Law of the People's Republic of China on Labor Contracts stipulates that an employer may not unilaterally terminate or suspend an employment contract with a worker during the period of diagnosis or medical observation of a patient with suspected occupational disease. However, it does not prohibit the worker from agreeing to terminate the labor contract with the employer under such circumstances. Xie belongs to the tenth degree of disability, does not belong to the "Work Injury Insurance Regulations" should be retained in the labor relationship of the disability level, such cases are allowed to workers and employers to agree to terminate the labor contract.
Since the agreement on the termination of the labor contract is legal and valid, and the two sides have fulfilled the termination of the labor relationship, if the employer does not agree to reinstatement, Xie's claim naturally cannot be supported.
Third, after the termination of the labor contract, Xie claimed the treatment of occupational injuries
1, according to the "scope of occupational diseases and occupational disease treatment methods," the provisions of the labor contract workers, temporary workers terminated or discharged after the termination of the labor contract, the period of stay in the newly discovered occupational diseases and the last period of the labor contract related to the work, its occupational disease treatment is the responsibility of the unit that originally terminated or discharged the labor contract. Xie's occupational disease occurred during the period of labor relationship with the mining company, and the mining company paid work-related injury insurance for him, Xie should enjoy work-related injury insurance treatment. According to the "Chinese people's *** and the state social insurance law", the one-time disability benefit and other costs should be paid from the industrial injury insurance fund.
2, according to the state council "work injury insurance regulations" article 33 of the provisions of the general period of no more than 12 months, in this case, the mining company had in July 2011 to pay a one-time compensation includes sick leave wages, the court can be based on the injury, discretionary determination of the period of leave.
Fourth, a one-time compensation of 30,000 yuan to deal with all the compensation issues in one package
According to the above July 2011 signed the "agreement to terminate the labor contract", Xie received a one-time compensation of 30,000 yuan (including a one-time economic compensation, medical expenses and medical subsidies, sick leave wages, etc.), but at this time Xie was not diagnosed with occupational disease deafness, not to mention the identification of grade 10 disability. Therefore, for xie mou due to occupational disease should get disability benefits and other work injury treatment mining company can not claim that it has been included in the 30,000 yuan. Mining company still has the obligation to pay Xie was identified as a grade 10 disability work injury treatment.
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