Whether an Employer Shall be Liable if an Employee Refusedto Take a Pre-departure Occupational HealthExamination?
Bai worked in a Jiangsu chemical industry company, and his position was related to the occupational disease hazards. The company informed Bai to take a pre-departure occupational health examination (hereinafter refers to the “Examination”) via EMS after his labor contract had been expired. But Bai did not take the Examination. Instead, he brought a labor arbitration on the illegal termination of the labor contract against the company, with the reason that the company did not arranged the Examination. After the arbitration and litigation, the court finally ruled in favor of Bai. (See (2015) Ning Min Zhong Zi No.1725 Civil Judgement)
According to Article 36 of the “Law of the People’s Republic of China on Prevention and Control of Occupational Diseases”, an employer shall organize the occupational health examination when an employee who is engaged in operations exposing him to occupational disease hazards leaves his position, otherwise the employer shall not dissolve or terminate the relevant labor contract. In practice, if an employer failed to arrange such Examination in accordance to the laws and regulations, then the employer would lose the lawsuit. However, like the case hereinabove, if the Examination was not completed due to the employee’s reason, whether the employer should undertake any liabilities?
On analyzing this problem, there are 2 aspects shall be taken into consideration:
Firstly, to check the procedure. Article 42 of the “Labor Contract Law” stipulates that an employer shall not dissolve the labor contract under Articles 40 and 41 of this Law if any of its employee: 1. is engaging in operations exposing him to occupational disease hazards and has not undergone an occupational health check-up before he leaves his position, ……. Article 45 stipulates that if a labor contract expires and it is under any of the circumstances as described in Article 42 of this Law, the term of labor contract shall be extended until the disappearance of the relevant circumstance……. Therefore, if an employer would dissolve or terminate a labor contract with any employee who is engaged in operations exposing him to occupational disease hazards, then the employer shall arrange the Examination before it makes the decision to dissolve or terminate the labor contract. Just like the case hereinabove, Nanjing Intermediate People’s Court supports the employee just because the employer informed the employee to take the Examination after it had terminated the labor contract, and this procedure was improper.
Secondly, to check the intention. Whether an employee refuses to take the Examination or waives the right to take the Examination? In practice, some employees may refuse to take the Examination, because they are not willing to cooperate with their employers, or they just take the Examination as a troublesome issue. However, some of them might claim for compensation afterwards. Under such circumstances, if an employer has nidificate an employee reasonably, normally the court will be in favor of the employer. For example, in the case (2015) Hu Min Chu Zi No. 00706, Suzhou Huqiu District People ‘s Court judged in favor of the employer. It decided that the employer had mailed the “Notification on Pre-departure Occupational Health Examination” to the employee, and required the employee to take the Examination within the specific period, otherwise it should be deemed that the employee had waived such right; but the employee failed to take the examination without any reasonable excuse.
It is worthy to note if an employee waives the right to take the Examination, in practice, some courts might not support the employer. Because some courts insist that the Examination is the statutory obligation of the employer, and the employee shall not be entitled to exempt this statutory obligation. For example, in the case (2015) Hu Er Zhong Min San (Min) Zhong Zi No. 962, Shanghai Second Intermediate People’s Court decided that the obligation of the employer to organize the Examination should not be exempted, even though both parties had reached an agreement on the dissolution of the labor contract.