An employee was hit by a car on his way home on the day of resignation, is it a work-related injury or not?

At noon on July 31, 2017, Wong completed his resignation procedures and left the company. Unexpectedly, Wong was dead in a traffic accident on his way home. He was not liable in this accident. Wong’s family filed an application for work-related injury recognition, the Human Resources and Social Security Bureau of Shanghai Pudong New District approved the application. The company refused to accept this recognition, and filed an administrative lawsuit against the bureau. Both the courts of the first instance and second instance supported the bureau. ((2018) Hu 01 Xing Zhong No.1436).

According to Article 14, Paragraph 6 of the “Regulations on Work-related Injury Insurance”, if an employee is injured in a traffic accident that is not his main liability while commuting to and from work, it shall be recognized as a work-related injury. However, in practice, many employers have a perception that if an employee is injured in a traffic accident while commuting to and from work on the day of employment or resignation, since the labor relationship has not been established or has been expired, such injury shall not be deemed as a work-related injury. This perception is incorrect.

Regarding the day of employment, if the day falls on the effective date stated in the labor contract, it will naturally be covered by Article14. If the day is the date that the employer requires the employee to go to the workplace to sign a labor contract, some human resources authorities may determine that a factual labor relationship has been established, thus, such injury shall be deemed as a work-related injury. For example, in the case of (2020) Su Min Shen No. 6126, the court held that, “Zhou brought relevant documents to the company for signing the labor contract on the date notified by the company, which should be regarded as an agreement between the parties to establish an employment relationship. The commuting to and from work of Zhou is a natural extension of work, so it should be recognized as a work-related injury.”

Regarding the day of resignation, Article 5 of the “Notice on Several Issues Concerning the Implementation of the Labor Contract System” stipulates: “…The termination time of a labor contract shall be based on 24:00 on the last day of the labor contract period.” Therefore, whether an employee resigns or is dismissed, as long as the employee is injured while commuting from work as usual, such injury should be recognized as a work-related injury.

However, in practice, there are special circumstances, that is, if an employee arrives late or leaves early without authorization and gets injured in a traffic accident during commuting, should it be recognized as a work-related injury? The “Opinion on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance (II) “(Ministry of Human Resources and Social Security [2016] No. 29) stipulates that, “6. Reasonable routes for employees to commute between their workplace and place of residence within a reasonable time, with the purpose of commuting to and from work, shall be deemed as a journey to and from work.” In judicial practice, there are different opinions on whether the above circumstances belong to the scope of “within a reasonable time”.

The first viewpoint holds that whether a violation of labor discipline is unrelated to the determination of an extension of work, and therefore should be recognized as a work-related injury, such as (2020) Lu Xing Shen No. 594, (2018) Su Xing Shen No. 135, and etc. The second viewpoint holds that the commuting time of employees who violate labor discipline is not a reasonable time, and therefore should not be recognized as a work-related injury, such as (2017) Yue Xing Shen No.919, and etc. There are more judgments supporting the first viewpoint.