On March 28th of 2016, the Second Opinions of Several Issues concerning the Implementation of the Regulation on Work-Related Injury Insurance was issued by the Ministry of Human Resources and Social Security. According to the Article 6 of the Second Opinions, an employee shall be ascertained to be “on the way to or back from work”, if he or she was commuting along a reasonable route between his or her workplace and residence within a reasonable time on the purpose of going to or return from work. Hence, the interpretations of “within a reasonable time” and “a reasonable route between the workplace and residence” directly influence the ascertainment of“on the way to or back from work”. Based on the main controversies in the judicial practices around China, we try to analyze and conclude the aforesaid issues in this article.
1. Controversies on the ascertainment of “within a reasonable time”
1) Under the circumstances that employees stay in the workplace after work.
On the controversy whether prolonged stay after work is considered“within a reasonable time”, the courts tend to give different opinions in accordance to different stay reasons in judicial practices:
- As for stay with work-related reasons, e.g. spending some time on necessary cleaning and tidying after work, it should be seen as “within a reasonable time”;
- As for stay with other reasonable causes, e.g. finishing work late into the night and staying overnight in the workplace in order to return to the remote residence next morning, it should be also regarded as “within a reasonable time”;
- As for stay with personal reasons, e.g. waiting for a colleague to return the employee’s own car in the workplace after work and then drive home after dinner in the nearby restaurant, it cannot be ascertained as on the way back from work “within a reasonable time”.
2) Under the circumstances that the employees have meals outside.
On the issue of employee’ s dinning out, the Supreme People's Court hold the opinion in its August 21st 2014 release of the four typical administrative cases on work-related Injury Insurance that it should be ascertained to be going to work “within a reasonable time”, if employees are on the way to work after meal.
Further, another controversy arises. Can employers avoid the responsibilities of the work-related injury caused by dining out through providing the canteen for employees? As for this issue, the courts in Chengdu and Suzhou have given viewpoint clearly that the canteen provided by employers should be seen as the employee welfare but not reasonable ground for prohibiting employees from dinning out.
However, due to the considerations of the various factors including the differences of the nature of work and the working systems, the courts in Shanghai have given different judicial opinion that when employers have provided reasonable meal service and expressly prohibited employees from dinning out in management system based on the employee’s special nature of work as a 24-hour security, the period of time for dinning out should not be ascertained as “within a reasonable time”.
2. Controversies on the ascertainment of “a reasonable route”
1) The living place employees commute to and from on weekend or holidays
With the increase of urban population mobility, a growing number of employees tend to work and live in one place during business days but shift to another during weekends or holidays, complicating identification of “a reasonable route”.
According to Clause 1 and 2 of Article 6 of the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Administrative Cases on Work-Related Injury Insurance, the “residence” supportedby the people's court should include domicile, habitual residence and the dormitory provided by employers as well as the residence of the employee’s spouse, parents or children. Therefore, if employees commute to and from the living places above-mentioned, it should be ascertained as the employee’s “residence”.
Furthermore, if an employee returns to dormitory from workplace and then to the aforesaid living places, can we consider the way back from work finishes immediately when the employee arrives at dormitory and ignore his or her way back to another living place? In practice, a court in Shanghai once put forward an explicit opinion that the living place employee returns to from dormitory on weekend or holidays should be also ascertained as “residence”, because residence can be multiple and variable. Therefore, the dormitory, as one of the employee’s rest places after work, cannot becomes the ground to deprive employee’s right of returning to other “residence”.
2) Detours taken for personal affairs on the way to or back from work
According to Clause 3 and 4 of Article 6 of the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Administrative Cases on Work-Related Injury Insurance, the Guiding Opinions of the Higher People's Court of Fujian Province on Several Issues concerning the Trial of Administrative Cases on the Ascertainment of Work-Related Injuries, the Guide of the Higher People's Court of Jiangsu Province for Hearing Administrative Cases on the Ascertainment of Work-Related Injuries and the Opinions of the Higher People's Court of Sichuan Province on Several Issues concerning the Trial of Administrative Cases on the Ascertainment of Work-Related Injuries, “a reasonable route” on the way to or back from work can be classified as follows:
- First of all, a reasonable route generally means the most direct and the most convenient route between the workplace and residence;
- Secondly, making a detour on reasonable grounds, e.g. buying food and taking kids to or back from school on the way, can be ascertained as along “a reasonable route” as they are necessities of daily work and life, which will not change the basic nature of going “to or back from work” or necessarily improve the likelihood of accidents;
- Thirdly, making a detour without reasonable grounds, e.g. with the main purpose of going to parties, visiting friends or going shopping after work, cannot be ascertained as along “a reasonable route” even if it’s the same route taken to or back from work.
In conclusion, the interpretations of “within a reasonable time” and “a reasonable route” have direct influences on the ascertainment of work-related injury “on the way to or back from work”. Therefore, employer should try to make sure and collect the related information while dealing with a work-related injury case, such as the time and the route of the accident happened, the reason for leaving the workplace, etc. and the decision of recognizing it as work-related injury should be made after comprehensive considerations of such matters. Meanwhile, we should notice that no regulation has been issued or can be issued to completely stipulate all the reasonable situations. Therefore, the related administration departments, and therefore the labor dispute arbitration committee and the courts have wide discretion in deciding what is “reasonable” and this may lead to opposite results in similar cases.