Can be 24 months,. 2013 "Supreme People's Court Bulletin" No. 6, pp. 45-48: 20 Jiangning Court for the seventh consecutive year of cases published in the "Supreme People's Court Bulletin" Date:2013-06-25 "Supreme People's Court Bulletin" No. 6 of 2013 published the Jiangning Court Li Man reported Liang Jieshu v. Nanjing Lafu Catering Management Co. This is the seventh consecutive year that the Court has had a case published in the Supreme People's Court Bulletin. The main points of the case are: workers suffering from cancer, mental illness and other special diseases that are difficult to treat should enjoy a 24-month medical treatment period. During the medical treatment period, the labor contract expires, and the labor contract shall continue until the expiration of the medical treatment period. If the employer unlawfully terminates or suspends the employment contract during the medical treatment period, and the worker requests to continue to fulfill the employment contract, the people's court shall revoke the employer's notice of termination or suspension. [Abstract] Workers suffering from cancer, mental illness or other special diseases that are difficult to treat shall be entitled to a 24-month medical treatment period. If the labor contract expires during the medical treatment period, the labor contract shall continue until the expiration of the medical treatment period. If an employer unlawfully terminates or suspends an employment contract during the medical period, and the worker sues for continuation of the employment contract, the people's court shall decide to revoke the employer's notice of termination or suspension. Plaintiff: Liang Jieshu. Defendant: Nanjing Lefu Catering Management Co. Legal representative: zhang jingchun, chairman of the company. The plaintiff LiangJieShu and the defendant nanjing lefu catering management company limited (hereinafter referred to as lefu catering company) labor dispute, to the people's court of nanjing city jiangning district litigation. The plaintiff LiangJieShu claim: on November 18, 2009, the plaintiff into the defendant restaurant company engaged in food service work, after both sides signed labor contract, the contract period from December 1, 2009 to November 30, 2011, the labor contract by the defendant custody. Due to long working hours and overwork in the Defendant's office, she suddenly developed a disease in early May 2010, and was diagnosed as Nephrotic Syndrome - Podocytosis Nephropathy (Uremia) by the hospital. on March 7, 2011, the Defendant changed the termination date of the labor contract to November 30, 2010 and terminated the labor contract of both parties on the ground of expiration of the medical treatment period. The illness suffered by the Defendant should have been a serious one and should have been entitled to a 24-month medical treatment period in accordance with the law. During the medical period, the Defendant terminated the labor contract of both parties is improper termination. Now to the court, requesting to order: 1. revoke the labor contract termination notice made by the defendant on March 7, 2011, and keep the labor contract relationship with the defendant; 2. the defendant to pay the sick leave allowance of 8,208 yuan from March to November 2011 (1,140 yuan / month × 9 months × 80%) and 27,360 yuan of wages during the medical period (1,140 yuan / month × 24 months), a total of 35,568 yuan. The total amount was 35,568 yuan. The Defendant Lafu Catering Company argued that the labor contract signed by both parties was from December 1, 2009 to November 30, 2010, and the Company did not change the termination period of the labor contract. The plaintiff LiangJieShu did not provide evidence to prove that the severity of the disease suffered by paralysis, cancer, mental illness and other major diseases, should not be entitled to 24 months of medical period. According to the plaintiff's years of service, he should be entitled to medical treatment period of 3 months, so the termination of the labor contract with the plaintiff on March 7, 2011 is legal, should not be revoked. Request the court to make a fair judgment according to law. Nanjing jiangning district people's court a review: the plaintiff LiangJieShu in November 18, 2009 to work in the defendant lefu catering company, the two sides signed a labor contract. Liang jieshu in early may 2010, diagnosed by nanjing general hospital of nanjing military region for foot cell disease, and then has been on sick leave, lefu catering company to Liang jieshu pay sick pay to 2011 in february. 2011, march 7, lefu catering company has been deferred to the term of the labor contract for the expiration of the medical period, notify Liang jieshu terminate the relationship between the two sides of the labor contract. On June 7, 2011, Liang Jieshu applied for arbitration to the Labor Dispute Arbitration Committee of Jiangning District, Nanjing (hereinafter referred to as Jiangning District Arbitration Committee). On July 11, 2011, jiangning district arbitration committee made ning ning labor arbitration case word (2011) No. 1247 arbitration award, after LiangJieShu do not accept the aforementioned award in the statutory period to the people's court of nanjing city jiangning district litigation. Also ascertained, the plaintiff LiangJieShu suffered from foot cell disease for nephrotic syndrome, is the kidney foot cell lesion. Uremia is chronic renal insufficiency (also known as chronic renal failure) fourth (also known as the final stage), chronic renal insufficiency is the final end of various progressive kidney disease. Podocytosis is one of the causes of chronic renal insufficiency. In November 2011, Liang Jieshu went to Nanjing General Hospital of Nanjing Military Region for treatment due to the relapse of his condition, and the Nanjing General Hospital of Nanjing Military Region issued a sick note to Liang Jieshu. In the course of treatment, the medical record also mentioned several times that Liang Jieshu's condition was serious and that he might die suddenly at any time, endangering his life. It was also ascertained that the minimum wage in Nanjing from February 2011 onwards was 1,140 RMB per month. During the trial, the defendant Lefu Catering Company failed to provide the original labor contract signed by both parties, and failed to provide evidence to prove that the plaintiff Liang Jieshu held the original contract signed. Lafu catering company provided a copy of the labor contract, on the term of the labor contract for the period of December 1, 2009 to November 30, 2010, "2010" there are traces of change. In addition, Lefu Catering Company provided on October 22, 2010 in Jiangning District Labor and Employment Management Center for the record of the employment record roster and employee employment registration form, employment record roster and employee employment registration form recorded Liang Jieshu's employment contract period of December 1, 2009 to November 30, 2010. The focus of the dispute in the first trial of this case is: the plaintiff Liang Jieshu should enjoy the duration of the medical period. Nanjing jiangning district people's court of the first instance that: the worker is sick or not due to work-related injuries, in the stipulated medical period of the labor contract expiration, the labor contract should be extended to the expiration of the medical period. On the plaintiff LiangJieShu should enjoy the medical period, because of the disease is serious, difficult to treat, at any time there may be life-threatening, should be a special disease, not the actual working years of limitation, so LiangJieShu should enjoy the medical period of 24 months. Regarding the termination date of the labor contract signed by both parties in this case, because Lafu Catering Company failed to provide the original labor contract, provided a copy of the cut-off date of "2010" there are traces of alteration, and the hiring record roster and employee hiring registration form filing time in the LiangJieShu after the illness, so on the Lafu Catering Company statement of the two sides. Therefore, the court did not accept the statement of Lefu Catering Company that the term of the labor contract was terminated on November 30, 2010, and accepted the statement of Liang Jieshu that the termination date of the labor contract was November 30, 2011. The labor contract between Liang Jieshu and Lafu Catering Company expired on November 30, 2011, but Liang Jieshu was still entitled to medical treatment, so the labor contract should be continued until the expiration of the medical treatment period. The termination of the labor contract between Liang Jieshu and Lefu Catering Company during the medical period was in violation of the law, therefore, the termination notification letter made by Lefu Catering Company on March 7, 2011 was invalid and should be revoked. If a worker stops working due to illness or non-work-related injury, and during the medical treatment period stipulated by the state, the employer shall pay sick leave wages to the worker at a rate of not less than 80% of the local minimum wage standard in accordance with the provisions of the wage distribution system. The plaintiff claimed other costs have no basis, the court will not support. In summary, nanjing jiangning district people's court in accordance with the "people's republic of china" article 77 of the labor law, "the people's republic of china" article 42 of the labor contract law, article 45, "jiangsu province" article 27 of the regulations on the payment of wages, article 32, "people's republic of china" article 64 of the first paragraph of the law of national litigation, in november 30th 2011, the judgment: 1, revoke the defendant lefu catering company in accordance with the wage distribution system of 80% of the local minimum wage. , revoke the Notice of Termination of Labor Contract made by the Defendant Lefu Catering Company on March 7, 2011 Second, the Defendant Lefu Catering Company shall pay the Plaintiff Liang Jieshu RMB 8,208 Yuan for the sick leave from March 1, 2011 to November 30, 2011 on the date of the legal effect of this judgment. The Defendant Lefu Catering Company shall pay the Plaintiff Liang Jieshu the sick leave wages at 80% of the minimum monthly wage standard of Nanjing City every month from the date of the legal effect of this judgment (from December 2011 to the termination of the labor relationship between the two parties according to the law). Rejecting the Plaintiff Liang Jieshu's other requests. Lefu Catering Company appealed to Nanjing Intermediate People's Court against the judgment of the first instance, claiming that: First, the original judgment was procedurally improper. During the labor arbitration hearing and the trial court applying the summary procedure hearing before the end of the court debate, Liang Jieshu has been recognized by his company to make the "labor contract termination notice". When the Court of First Instance applied ordinary procedures to hear the case, Liang Jieshu changed his claim, proposing that the termination of the labor relationship was improper and the labor relationship should be maintained, which obviously exceeded the time limit stipulated by the law. Second, the trial judgment to revoke the "termination of labor contract notification letter" is wrong. Liang jieshu in nanjing jiangning district labor dispute arbitration committee hearing ning ninglao zhong case word (2010) no. 2265 labor dispute case, for his company to produce the deadline for the "november 30, 2010" labor contract without any objection. According to the Supreme People's Court's "Several Provisions on Evidence in Civil Litigation", Article 9(5), the parties do not need to prove the facts confirmed by the effective decision of the arbitration institution, and the company does not need to provide the original of the so-called labor contract. Liang Jieshu's current condition, which did not yet constitute uremia, should be entitled to a 3-month medical period, not a 24-month medical period. His company's termination of the labor contract in March 2011 was legal. The Court of Second Instance requested the Court of First Instance to revoke the judgment of the original trial, and to change the judgment to pay Liang Jieshu the economic compensation for termination of the labor contract and the wages for the March 2011 sick leave. The Appellee Liang Jieshu argued that the Court of First Instance determined the facts clearly and applied the law correctly, and requested the Court of Second Instance to make a ruling in accordance with the law. Nanjing Intermediate People's Court confirmed the facts of the first instance after the second instance. The second trial also found that the appellee Liang Jieshu's request in the arbitration stage was: the appellant Lefu Catering Company to pay RMB 2,280 yuan of economic compensation for termination of labor contract, RMB 8,208 yuan of sick leave allowance from March to November 2011, RMB 6,840 yuan of wages for medical treatment, RMB 20,520 yuan of medical subsidy fee, to make supplementary payment of social insurance to November 2011, and to handle the transfer of archives and social insurance relationship. On August 10, 2011, Liang Jieshu filed a lawsuit with the trial court with the following demands: 1. To pay him 37,848 RMB*** for the improper termination of the labor relationship by Lefu Catering Company, including 2,280 RMB for economic compensation for termination of the contract, 8,208 RMB for the sick leave allowance from March to November 2011, and 20,520 RMB for the medical treatment period; 2. Lefu Catering Company to pay social insurance for him till On September 6, 2011, the trial court applied the summary procedure for the first hearing, Liang Jieshu changed the medical period wage to RMB 27,360, and the other requests were the same as the complaint. on November 6, 2011, the trial court transferred the case from summary procedure to ordinary procedure. on November 15, 2011, Liang Jieshu submitted the case to the trial court. On November 15, 2011, Liang Jieshu changed his request in writing to the trial court, requesting the court to order: Lafu Catering Company to terminate the labor relationship improperly and maintain the labor relationship between the two parties; and to give up the claim of termination of the labor contract economic compensation of 2,280 RMB. Other litigation request does not change. 2011 November 22, the court of first instance, applying the ordinary procedure hearing (Lafu catering company to give up the period of proof), Liang Jieshu said in court to give up for the file and social insurance relationship transfer formalities of the request. Nanjing Jiangning District Labor Dispute Arbitration Committee on November 3, 2010 made the Ning Ning labor Zhong case word (2010) No. 2265 arbitration award did not confirm that Liang Jieshu, Lafu Catering Company between the term of the labor contract is from December 1, 2009 to November 30, 2010. The focus of the dispute in the second instance of this case was still the duration of the medical treatment period to which the appellee Liang Jieshu was entitled. Nanjing Intermediate People's Court of the second instance that: the appellee Liang Jieshu in the court debate before the end of the change in the litigation request, in line with the Supreme People's Court "on the application of ".