Two different judgments: 17 professional patients on a difficult journey to seek justice

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http://img.aqsc.cn/images/2013-07-15/1373849850334.jpg Just because they failed to classify their \"illnesses\" as \"occupational diseases\" at the time of leaving the company, so as to protect their rights in a timely manner, 17 people suffering from occupational diseases were forced to face difficulties in seeking redress due to the \"one-year arbitration deadline\". Driven by the dream of wealth, 17 people set out to work in a foreign land ； The unfamiliar term “occupational disease” mercilessly pulled them onto a struggle for their rights, a race against time to save their lives. To confirm their employment relationships, 17 workers filed lawsuits in court, and determining when the statute of limitations for arbitration should begin became key to determining their success or failure. http://img.aqsc.cn/images/2013-07-10/1373446485526.jpg http://img.aqsc.cn/images/2013-07-10/1373447354153.jpg http://img.aqsc.cn/images/2013-07-11/1373525231295.jpg Zhang Xianquan and others were at the entrance of the Shizuishan Intermediate People’s Court. In order to improve their family’s living conditions, in February 2002, driven by his dream of becoming wealthy, Zhang Xianquan was introduced to work as a blaster at Alxa League Tiancheng Coal Co., Ltd. A salary of over 20,000 yuan per year is considered a \"high income\" for migrant workers in poor mountainous areas. Seeing that Zhang Xianquan had made money, dozens of his fellow villagers joined him, becoming blasters and coal miners. 　　By the end of 2006, the boss sent Zhang Xianquan and others to the Baijigou Xiaoyushugou Coal Mine in Shizuishan City to continue working on open-pit coal mining. The boss at that time had not registered the company yet; it was not until November 24, 2008, that the excavation team established Shizuishan Tiancheng Industry and Trade Co., Ltd. After that, Zhang Xianquan and others were divided into two groups, working respectively at Alxa League Tiancheng Coal Co., Ltd. and Shizuishan City Tiancheng Industry and Trade Co., Ltd. 　　The workers operate in an environment filled with dust that obscures the sky; the employer fails to provide necessary protective equipment and dust-control measures, does not offer them benefits for occupational health checks, and moreover does not sign labor contracts with them. Zhang Xianquan actually doesn’t care much about these things. His greatest wish is to work for another two years, and then use the money he’s saved to \"retire,\" return to his hometown to build a house and farm, and live a peaceful life with his family. Unfortunately, Zhang Xianquan’s health gradually failed to allow him to carry out his regular work. He often has \"cold\" symptoms and difficulty breathing. 　　On January 16, 2012, worker Gou Chengyuan passed away, and the news spread among their group; they became frightened and went to the Jiange County Disease Control Center as well as West China Hospital for examinations, which revealed that they suffered from silicosis or pneumoconiosis. http://img.aqsc.cn/images/2011-02-11/1297412380515.gif http://img.aqsc.cn/images/2013-07-11/1373510752835.jpg After learning that they had contracted an occupational disease, Zhang Xianquan and the others were still unaware of the rights they enjoyed. With the intervention of the nonprofit organization \"Da Ai Qing Chen\" in providing treatment, they gradually learned more about pneumoconiosis, which led to the idea of fighting for their rights. To their surprise, they won the first trial but lost the second, with the key issue in the decision being the \"one-year arbitration time limit\". In October 2012, Zhang Xianquan and others sought legal assistance from a lawyer. On the morning of October 22, the cases of Zhang Xianquan, Zhang Xianwu, and Deng Quansheng were heard together at the Dawukou District People’s Court in Shizuishan City. The court supported Zhang Xianquan’s request to have his labor relationship recognized. Tiancheng Company disagreed and appealed to the Shizuishan Intermediate People’s Court, with the hearing taking place on March 22, 2013. The company believes that Zhang Xianquan completed the work tasks for that year and received his wages in full by January 2011, after which he left the company on his own. Even if it is argued that the employer violated his legitimate rights and interests, he should have asserted those rights between January 2011 and January 2012; however, he did so only in July 2012, which clearly exceeds the statutory time limit. Therefore, the company requests that Zhang Xianquan’s claims in the first-instance trial be dismissed. 　　After losing the arbitration regarding the confirmation of their labor relations, Zhang Guanghai and 11 others filed a lawsuit in the People’s Court of Azuo Banner. The case was heard in the Wusutu Court on December 4, 2012, and all 12 individuals won the lawsuit concerning the dispute over their labor relations. Before they could even cheer, the employers appealed to the Alxa League Intermediate People’s Court. The court held a hearing on June 19, and Zhang Guanghai and the others received the judgment on June 26; in all 12 cases, the litigation requests were dismissed due to the expiration of the arbitration deadline. In the same case, the court of first instance ruled that the establishment of an employment relationship was not subject to the statute of limitations, whereas the court of second instance dismissed the claim on the grounds that the arbitration deadline had passed; thus, the two courts issued completely different judgments. http://img.aqsc.cn/images/2011-02-11/1297412380515.gif http://img.aqsc.cn/images/2013-07-11/1373512492814.jpg Group photo taken before the trial at the Wusitu Court of the Alxa Left Banner People’s Court on December 4, 2012. http://img.aqsc.cn/images/2013-07-11/1373510697428.jpg http://img.aqsc.cn/images/2013-07-11/1373512511529.jpg Deng Hua suffered from stage 3 silicosis and relied on oxygen to survive; his employment relationship had not yet been confirmed, and some diagnoses related to occupational diseases had not yet been made. During the lengthy process of waiting for arbitration and litigation, his already fragile health deteriorated, and he passed away while striving to assert his rights. In December 2012, with the help of a lawyer, Zhang Guangbin, a patient with stage 3 pneumoconiosis, had his lawsuit to seek compensation for his condition heard in Inner Mongolia. However, he did not live long enough to hear the final verdict; he passed away due to respiratory failure at 9 p.m. on January 23, 2013. On his deathbed, Zhang Guangbin insisted on donating his corneas voluntarily to those in need of them. Stripped of everything to cover medical expenses, Zhang Guangbin was finally able to be buried thanks to donations from netizens. After Zhang Xianquan and four others lost the second-instance trial, the only legal option left for them was to apply for a retrial. In the case of the 12 people in Alxa League, two of them had died, and their only legal option as well was to request a retrial. The review period alone is three months; among them, Zhang Xianwu and others are in serious condition and rely on oxygen to survive. Zhang Xianquan and 16 others are applying for a retrial. “They also have to go through procedures such as diagnosis of occupational diseases, recognition of work-related injuries, assessment of working capacity, arbitration for compensation, first-instance trials, and second-instance trials. Their lives are a race against time, but no one knows how much time is left for them. ”Wang Shengli said helplessly. http://img.aqsc.cn/images/2011-02-11/1297412380515.gif http://img.aqsc.cn/images/2013-07-11/1373510939880.jpg http://img.aqsc.cn/images/2013-07-15/1373851960723.jpg Huang Leping, Director of the Beijing Yilian Labor Law Assistance and Research Center and Deputy Director of the Labor and Social Security Law Committee of the Beijing Lawyers Association. http://img.aqsc.cn/images/2008-06-06/1212741989256.jpg Legislative issues are the root cause; the lack of voice for workers is the fundamental problem. The experiences of 17 workers suffering from occupational diseases who lost their labor disputes show that it’s not just difficult for such workers to assert their rights – it reflects a deeper issue: these workers are completely marginalized and have weak legal protections. The issue of the judiciary is the symptom; the issue of legislation is the cause, while the reality of workers having no voice is the root cause. http://img.aqsc.cn/images/2008-06-06/1212741989256.jpg The limitation period for arbitration should start from the time when it becomes apparent that one has an illness and a request is made for a diagnosis of an occupational disease. However, in terms of the judgment in this case, both the decisions of the local arbitration institution and those of the court were incorrect. The arbitration and the second-instance court dismissed the parties’ claims on the grounds that the statute of limitations had expired; on the surface, this appears to be in compliance with Article 2 (Scope of labor dispute arbitration) and Article 27 (Statute of limitations for arbitration) of the Labor Dispute Mediation and Arbitration Law, but in reality it represents an incorrect application of Article 27 of said law. Article 27 stipulates that “the time limit for filing an arbitration application regarding labor disputes is one year.” ”It is clear that \"the limitation period for arbitration begins to run from the date when the party knows or should know that its rights have been violated.\" ”So, when did these 17 workers suffering from occupational diseases become aware, or should have become aware, that their rights had been violated? Is it from the day they left the company (January 2011)? Of course not. So, when does the counting start? It should start with them discovering that they have silicosis or pneumoconiosis and requesting a diagnosis of an occupational disease. Article 50 of the Law on the Prevention and Control of Occupational Diseases provides clear legal provisions to this effect: \"During the process of diagnosing and identifying occupational diseases, when determining an employee’s occupational history and exposure to occupational disease hazards, if the parties are in dispute regarding the labor relationship, type of work, job position, or duration of employment, they may apply for arbitration to the local labor and personnel dispute arbitration committee.\" ； The labor and personnel dispute arbitration committee that receives the application shall accept it and render a decision within thirty days. ”There is an employment relationship between the worker and Tenjou Company, a fact that Tenjou Company itself has not denied. If there were no difficulties in seeking recourse for occupational diseases, if proof of employment relationships was not required for diagnosing occupational diseases, these kind workers would never have thought of demanding their rights from Tiancheng Company. It was originally Tiancheng Company’s obligation to submit proof of labor relations as well as relevant materials for the diagnosis of occupational diseases. It is only now, because the company fails to fulfill its legal obligations, that the workers realize that their rights have been violated; it is only at this time that they become aware, or should become aware, that their rights have been infringed. Therefore, the starting date for the arbitration limitation period should be calculated from after January 2012. http://img.aqsc.cn/images/2008-06-06/1212741989256.jpg The time limit for 17 people to seek rights protection has not expired, and the judgment in the first instance was correct. It should be noted that one of the reasons for introducing Article 50 in the amendment to the Law on the Prevention and Control of Occupational Diseases was to address the issue of the time limit for resolving labor disputes. Therefore, the 17 workers’ claim for their rights was not time-barred, and the conclusion of the first-instance judgment was correct. http://img.aqsc.cn/images/2013-07-15/1373851968892.jpg Wang Shengli, lawyer at the Shijiazhuang Work-related Injury and Occupational Disease Legal Aid and Research Center. http://img.aqsc.cn/images/2008-06-06/1212741989256.jpg Determining the existence of an employment relationship is a declaratory action and is not subject to the statute of limitations. Article 27 of the Labor Dispute Mediation and Arbitration Law stipulates: “The time limit for filing an arbitration claim regarding labor disputes is one year.” The limitation period for arbitration begins to run from the date when the party knows or should know that its rights have been violated.” Among them, the definition of \"starting from the date when one knows or should know that their rights have been violated\" often becomes a point of contention in labor dispute cases. Occupational diseases have an incubation period; treating them simply as other labor disputes subject to arbitration time limits would be unfair. Moreover, “feeling unwell” cannot be equated with knowing that an occupational disease exists; the court should consider the medical certificate issued by a healthcare institution submitted by the party as the date on which they became aware of the infringement of their rights, rather than taking the date on which the party resigned due to illness as the date of such infringement. Furthermore, a lawsuit to confirm an employment relationship falls under the category of confirmation lawsuits among the “three types” of civil lawsuits, and confirmation lawsuits are not subject to the statute of limitations. Related link: Research on the limitation period for lawsuits to confirm labor relations http://img.aqsc.cn/images/2013-07-11/1373510948890.jpg Article 50 of the Law on the Prevention and Control of Occupational Diseases: During the process of diagnosing and identifying occupational diseases, when determining an employee’s occupational history and exposure to occupational hazards, if the parties involved have disputes regarding the labor relationship, type of work, job position, or duration of employment, they may apply for arbitration to the local labor and personnel dispute arbitration committee ； The labor and personnel dispute arbitration committee that receives the application shall accept it and render a decision within thirty days. The party is responsible for providing evidence to support the claims it makes during the arbitration process. If the worker is unable to provide evidence related to the arbitration claims that is in the possession of the employer, the arbitration tribunal shall require the employer to provide it within a specified time limit ； If the employer fails to provide it within the specified period, it shall bear the adverse consequences. If a worker is dissatisfied with an arbitration award, they may file a lawsuit with the people’s court in accordance with the law. If the employer is dissatisfied with the arbitration decision, it may file a lawsuit with the people’s court in accordance with the law within 15 days as of the date when the procedures for diagnosing and assessing occupational diseases are completed ； During the litigation, the worker’s treatment costs are covered through the channels specified for occupational disease benefits. Article 2 of the Law on Mediation and Arbitration of Labor Disputes: This Law applies to the following labor disputes that arise between employers and employees within the territory of the People’s Republic of China: (1) Disputes arising from the confirmation of labor relations ； (II) Disputes arising from the conclusion, performance, modification, termination, and dissolution of labor contracts ； (III) Disputes arising from expulsion, dismissal, resignation, and departure ； (IV) Disputes arising from working hours, rest and leave, social insurance, welfare, training, and labor protection ； (5) Disputes arising over labor remuneration, medical expenses for work-related injuries, economic compensation, or damages ； (6) Other labor disputes stipulated by laws and regulations. Article 27 The time limit for filing an arbitration application regarding labor disputes is one year. The limitation period for arbitration begins to run from the date when the party becomes aware or should have become aware that its rights have been violated. The limitation period for arbitration specified in the preceding paragraph is interrupted if a party asserts its rights against the other party, seeks relief for those rights from the relevant authorities, or if the other party agrees to fulfill its obligations. From the time of interruption, the arbitration limitation period starts to run again. If, due to force majeure or other legitimate reasons, a party is unable to file an arbitration claim within the time limit for arbitration specified in the first paragraph of this article, the limitation period for arbitration shall be suspended. The arbitration time limit resumes to run from the date on which the cause for suspension is removed. In the event of a dispute arising from unpaid labor remuneration during the duration of the labor relationship, the worker’s application for arbitration is not subject to the time limit for arbitration stipulated in the first paragraph of this article ； However, if the labor relationship is terminated, the claim must be filed within one year from the date of termination of the labor relationship.