On June 5438+1 October1day, 2009, Shen signed a one-year labor contract with a company, stipulating that Shen was engaged in refrigeration operation. After the expiration of the contract, the company issued a Notice of Termination of Labor Contract to Shen. However, Shen felt unwell due to work and unknown reasons, and asked the company to do a health check-up for himself before leaving his job. Otherwise, he refused to leave the post, and the company refused on the grounds that he did not have the obligation to leave the post for medical examination. In this way, the two sides became a lawsuit.
The court held that it is the legal obligation of the employer to conduct pre-job health examination for employees engaged in toxic and harmful special posts, and it is illegal for the company to refuse to perform its obligations. The company was ordered to conduct a pre-employment health examination on Shen and make corresponding treatment according to the examination results.
On the one hand, Article 42 of China's Labor Contract Law stipulates that the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law if the workers exposed to occupational hazards have not undergone occupational health examination before leaving their posts, or if the patients suspected of occupational diseases are during diagnosis or medical observation. Article 45 stipulates that upon the expiration of a labor contract, under any of the circumstances specified in Article 42 of this Law, the labor contract shall continue until the corresponding circumstances disappear. Article 48 stipulates that if the employer dissolves or terminates the labor contract in violation of the provisions of this law and the laborer requests to continue to perform the labor contract, the employer shall continue to perform it; If the laborer does not request to continue to perform the labor contract or the labor contract cannot be continued, the employer shall pay compensation in accordance with the provisions of Article 87 of this Law. Article 87 stipulates that if an employer dissolves or terminates a labor contract in violation of the provisions of this law, it shall pay compensation to the laborer at twice the economic compensation standard stipulated in Article 47 of this law.
On the other hand, Article 32 of the Law on the Prevention and Control of Occupational Diseases stipulates that the employer shall, in accordance with the regulations of the health administrative department of the State Council, organize occupational health examinations for workers exposed to occupational hazards before, during and after taking up their posts, and truthfully inform the workers of the examination results. The expenses for occupational health examination shall be borne by the employer. Workers who are found to have occupational-related health damage during occupational health examination shall be transferred from their original posts and properly placed; Laborers who have not undergone occupational health examination before leaving their posts may not dissolve or terminate their labor contracts.
According to the Administrative Measures for Safety Technology Training and Assessment of Special Operators promulgated by the State Economic and Trade Commission 1999, the scope of toxic and harmful special operations includes refrigeration operations. Therefore, Shen's refrigeration work in this case belongs to the protection object of the Labor Contract Law and the Occupational Disease Prevention Law. It is illegal for the company to terminate the labor contract with Shen without a medical examination.
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