The labor contract should have been renewed, and in order to avoid paying social insurance, the labor service agreement was signed in the name of another person
If the company dies suddenly during the "borrowed identity" on the job, can the company deny the labor relationship?
The court held that the existence of the fact of actual employment is the only criterion for determining the labor relationship
This newspaper news (reporter Wu Duosi and intern Wang Wenhan) borrowed the identity of another person to engage in security work, did the sudden death affect the determination of the de facto labor relationship between the two sides? Recently, the Urumqi Intermediate People's Court of Xinjiang Uygur Autonomous Region made a judgment that although Ma signed a labor service agreement with the property company in the name of another person, the specific work was still performed by himself, and the company paid remuneration on schedule, and there was still a labor relationship between the two parties during the borrowing period.
From April 2015 to February 4, 2022, Ma worked as a security guard in a property company in Urumqi, Xinjiang, and the two parties signed an employment contract. On March 2, 25, in order to avoid paying social security, the property company and Ma jointly agreed that Ma would sign a labor service agreement with the company in the name of Li. The agreement stipulates that Li is engaged in security work in the property company, with a monthly salary of 2022,3 yuan, and the monthly salary is credited to Li's bank card. In fact, Li did not provide labor services to the property company, and the specific work was performed by Ma, and the work content and place of work remained unchanged. At 1 a.m. on August 2600, 2022, Ma was found suddenly dead in the security room.
In December 2022, Ma's family submitted an application for arbitration to the Labor and Personnel Dispute Arbitration Commission of Midong District of Urumqi, and the arbitration committee ruled that between April 12 and August 2015, 4, there was an employment relationship between Ma and the property company. The company was not satisfied and sued the court.
The Urumqi Midong District People's Court held that although after consultation between Ma and the property company on March 2022, 3, the two parties unanimously agreed that Ma would sign a labor service agreement with the property company in the name of Li, it was still Ma who continued to work for the property company, and the property company also accepted Ma's labor and implemented the functions of management, command and supervision of Ma's work. The funds transferred by the property company to Li's bank account are Ma's monthly labor remuneration, and no matter what relationship Ma and Li have, the fact that the property company will transfer the monthly salary to Li's bank account is jointly agreed upon by Ma and the property company, and it can be determined that Ma has received remuneration from the property company. Therefore, it should be determined that there was an employment relationship between Ma and the property company from March 1, 2022 to August 3, 1.
Accordingly, the court rejected the property company's claim at first instance, and the property company was not satisfied and filed an appeal.
The Urumqi Intermediate People's Court held that the employer's fact of whether the employee actually employed the employee was the only criterion for determining the labor relationship. Although the property company signed a written labor service agreement with Li, it was Ma who actually went to work to engage in security work, that is, the property company and Ma had an actual employment relationship, and the two parties had a de facto labor relationship.
The court of second instance dismissed the appeal and upheld the original judgment.
The trial judge stated that de facto labor relationship is a state, and the de facto state is only a reflection of the objective situation, and borrowing the identity of others does not affect the determination of de facto labor relationship. Therefore, the property company's claim that Ma signed a labor service agreement with the company in the name of Li and that the two parties were in a labor relationship could not be established, and the court did not support it. (Daily Worker)