HIV – 1 antibodies positive & ndash; & ndash; The centers for disease control and inspection report, confirm Xie Peng (a pseudonym) is a HIV infections.
sichuan guy Xie Peng exception is found among entry examination body, when he is work in a company for more than a month, passed the probation period, but the company has yet to sign labor contract with him. To work for a third month confirmed after HIV infection, he fired from a company.
into life trough Xie Peng submitted to neijiang labor arbitration commission for arbitration. Labor arbitration to support the part about twice the salary he demands, but Xie Peng think that unit of choose and employ persons did not provide a labor contract is discrimination against him, then to the court.
on January 2, neijiang downtown district court accepted the case, the hearing is scheduled for January 25.
Xie Peng for entry examination detected AIDS lost his job, he told the court. Respondents for figure
entry examination diagnosed with HIV
in April 2017, to neijiang Xie Peng applying for a company to work. After his entry examination results come out, triggered a dispute of labor dispute.
neijiang labor dispute arbitration committee found that Xie Peng on April 7, 2017, applying to the company, the two sides oral agree probation for one month; On May 9, the company arranged Xie Peng in physical examination. On June 6, neijiang six hospital formally issued & other; Physical examination unqualified & throughout; Report; On June 9, the company to & other; The applicant check-up unqualified, can’t hire the applicant & throughout; On the grounds that lifted the both parties of labor relations. From April 7 solstice on June 9, Xie Peng work hours for 2 months and 3 days, received labor compensation of 11879 yuan, did not sign a written labor contract.
Xie Peng said, go to work after a month, he passed the probation appraisal, but the company has yet to sign a written labor contract with him, but for his examination. Then the re-inspection results come out, call the hospital.
& other; I cry for two days, after the eat to eat, drink the bai in the drink. Throughout the &; Xie Pengshui, company let him home to recuperate cure, and pays 3000 yuan salary at the end of July, the company hasn’t paid for him, also didn’t arrange the work task.
the company has said that Xie Peng work accept entry examination, after a month later, the hospital informed him to review, he initially refused to go to, until after half a month to complete the review. When I get the results of the review on June 9, the human resources department staff told Xie Peng, due to a medical is unqualified, can’t hire him, on the day of the relevant formalities.
after losing a job, in November 2017, Xie Peng submitted to neijiang labor arbitration commission for arbitration.
refuses to accept the arbitration litigation, asked to sign labor contract
Xie Peng argues that companies hire him, sign labor contract with him, not according to stipulations according to the provisions of the labor law should pay double salary; In addition, he also requires companies to sign non-fixed term labor contract.
Xie Peng attorney, all tell surging news, apply for arbitration Xie Peng requirement sign a written labor contract, arbitration commission staff shall specify the contract deadline is put forward. & other; Really need to have a clear deadline, then the non-fixed term. Throughout the &; All said, & other; At least one-year fixed term contract, this is a victory. Throughout the &;
all pointed out that Xie Peng through entry examination, after the probation period is carried out in accordance with the civil servants employed medical standards, especially included HIV testing project, does not conform to the Xie Peng work needs. All think Xie Peng labor relationship with the company exists, the just shall sign a written labor contract.
in December 2017, neijiang labor arbitration commission ruling: unit of choose and employ persons due to sign labor contract, not according to stipulations shall pay Xie Peng June 9 double time; On June 9, the company citing check-up unqualified and Xie Peng terminate the labor relationship, therefore, do not belong to the non-fixed term labor contract should be signed.
Xie Peng refuses to accept, to the court. The case is neijiang downtown district court, trial begins on January 25.
the lawyer says: unit of choose and employ persons must not illegal fired HIV/AIDS patients, and shall not be mandatory testing
Xie Peng case centred on the entry examination can contain HIV testing? Unit of choose and employ persons can dismiss employees infected with the AIDS virus?
smell partner at law firm in Beijing yung-fu Chen lawyer said, “AIDS prevention and control regulations” article 23 regulation in our country, the state shall practise a system of AIDS voluntary counselling and voluntary testing. & other; Both the enterprises and institutions and government organs, when enroll personnel are not allowed to forced AIDS test, unless a hired staff agreed to voluntarily. Throughout the &; Yung-fu Chen said.
if the employee was found to HIV/AIDS, unit of choose and employ persons is how to deal with? Specified in article 3 of the HIV/AIDS prevention and control ordinance, any unit or individual may discriminate against HIV, AIDS patients and their families, HIV, AIDS patients and their families marriage, employment, medical treatment, such as entrance lawful rights and interests are protected by law.
& other; Unit of choose and employ persons not only can’t resign to detect the AIDS workers, even more respect and in accordance with the law to protect the legal right of equal employment. Throughout the &; Yung-fu Chen lawyer said, according to the relevant provisions, the relevant departments of local government at or above the county level shall create conditions, have labor ability of HIV and AIDS patients, engaged in production and work within our capabilities.
yung-fu Chen thinks, sichuan man Xie Pengzai through labor after the probation period, the company with its detect HIV/AIDS, and other Physical examination unqualified & throughout; Grounds, refuse to employ, the lack of legal basis, or unlawful terminate the labor relationship. According to “labor contract law” the provisions of article 48 illegal to remove or terminate the labor contract of unit of choose and employ persons, laborer demands continued performance of labor contract, the employer shall continue to perform; Workers are not required to continue to perform the labor contract or cannot continue to perform the labor contract, the employer shall pay damages.
& other; However, law also specifies the workers injury may terminate the contract. Throughout the &; Yung-fu Chen lawyer said, first article 40 of the “labor contract law” regulation, the laborer illness or injury, after the expiry of the prescribed medical cannot be engaged in the original work, also cannot be engaged in other work assigned by unit of choose and employ persons, unit of choose and employ persons give a written notice to the laborer 30 days in advance or extra pay a salary to employees, may terminate the labor contract.