Determination of and Countermeasures to the Work-related Injury Related to “Unlicensed Taxi”

Zhang took an “Unlicensed Taxi” from his home to the company, the “Unlicensed Taxi” was crushed by another car, and Zhang was injured in the accident. Then, Zhang applied for the determination of the work-related injury, however, the company said that the “Unlicensed Taxi” did not have the qualification to run business, so it should not be determined as the work-related injury. Zhang applied to a labor dispute arbitration committee for arbitration, and finally, the committee supported his claim.

According to “Social Insurance Law” and “Regulation on Work-Related Injury Insurances “(“Regulation”), the no-fault liability principle shall be applied in the issues related to the work-related injury insurances, whether an employee was injured in a traffic accident shall be determined as a work-related injury, there are only 2 requirements shall be fulfilled, which are, on his way to or back from work, and he shall not bear the primary responsibility for the accident. Article 16 of “Regulation” has stipulated those circumstances which shall not be regarded as a work-related injury, such as committing a crime or violating the public security order, so taking an “Unlicensed Taxi” is excluded. The newly issued “Provisions of the Supreme People’s Court on Several Issues concerning the Trial of Administrative Cases on the Work-Related Injury Insurance” has clarified the interpretation of “the way to work on”, which requires the reasonable time and reasonable route, but the legitimacy of the vehicle is excluded. In this case, the traffic accident happened during the reasonable time on Zhang’s way from his home to the company, which meets the requirements of “the way to work on”, in addition, Zhang shall not bear the primary responsibility for the accident, so his injury shall be determined as a work-related injury.

However, taking an “Unlicensed Taxi” does increase the risk of traffic accidents. How can the companies reduce such riskt for the employees during “the way to work on” by inhibiting the employees to take the “Unlicensed Taxi”?

In practice, some companies stipulate a disciplinary clause on such action, such as, where an employee takes an “Unlicensed Taxi”, he shall be fired, which says that these companies take “taking an Unlicensed Taxi” as the reason for the termination of a labor contract. But such disciplinary article is still in dispute in the judicial practice. Take a labor dispute case in Suzhou for example, the labor arbitration committee decided that such regulations were legitimate and effective, the company should be entitled to terminate the labor contract based on such disciplinary clause. However, the court of first instance overturned the arbitration award, noting: “The company is entitled to formulate rules and regulations on the management of the normal production and operation activities, but for employees’ personal actions which are not related to work, the employer can formulate a advocacy rule appropriately, which says that a reward is better than a prohibition, and the punishment shall not be applied.”

Therefore, in order to guide and restrict the employees’ relevant actions, it would be better for the companies to set “taking an Unlicensed Taxi” as one of the evaluation elements, which will affect the final evaluation results.