Re-employment after retirement: labor service or labor relationship?
After reemployment upon retirement, does it belong to labor or employment?
Compiled from: Jinan Huaiyin District People's Court
If an individual has already exceeded the statutory retirement age at the time of employment, are they still a qualified subject for a labor contract? Is the relationship established with the employer one of labor relations or employment relations?
Case Review
In January 2021, Xia (born in 1968) joined a catering company, and both parties signed a "Labor Contract" stipulating the contract period from January 26, 2021, to April 25, 2022, with the position of pastry chef in the kitchen department, along with other rights and obligations. On March 25, 2022, Xia was injured in a traffic accident while driving an electric bicycle. Xia claimed that during his treatment and recovery, the catering company did not pay sick leave wages, so he applied for arbitration, but the arbitration institution decided not to accept the case. Xia sued the catering company in Huaiyin Court, requesting confirmation of an actual labor relationship between the two parties from January 26, 2021, to March 17, 2023, and demanding the defendant pay sick leave wages of 29,640 yuan for the period from March 25, 2022, to March 17, 2023.
The catering company argued that the plaintiff had already filed a lawsuit in another court regarding the motor vehicle accident liability dispute and claimed lost wages, and now claiming sick leave wages in this case constituted duplicate claims. Additionally, the labor relationship between the two parties had been terminated since April 26, 2022, so the plaintiff's claim should not be supported.
Court Opinion
The focus of this case was whether a labor relationship existed between the plaintiff and defendant from January 26, 2021, to March 17, 2023, and whether the defendant should pay the sick leave wages claimed by the plaintiff.
After trial, the court held that Article 21 of the "Regulations on the Implementation of the Labor Contract Law of the People's Republic of China" stipulates that when a worker reaches the statutory retirement age, the labor contract terminates. Article 1, Paragraph 1 of the "Interim Measures of the State Council on Worker Retirement and Resignation" specifies that the retirement age for male workers is 60 years old, and for female workers is 50 years old. In this case, Xia had already exceeded the statutory retirement age when he joined the catering company, so it could not be determined that he had established a labor relationship with the catering company. The court did not support Xia's request to confirm a labor relationship between him and the catering company from January 26, 2021, to March 17, 2023. Since the court had already determined that no labor relationship existed, Xia's request for the catering company to pay sick leave wages from March 25, 2022, to March 17, 2023, lacked basis and was not supported.
Ultimately, the court ruled to dismiss Xia's claims. Xia appealed to the Jinan Intermediate Court, which after trial, ruled to dismiss the appeal and uphold the original judgment.
The "Regulations on the Implementation of the Labor Contract Law of the People's Republic of China"
Article 21
If a worker reaches the statutory retirement age, the labor contract shall be terminated.
Interim Measures of the State Council on Retirement and Resignation of Workers
Article 1, Paragraph 1
Workers in enterprises owned by the whole people, institutions, Party and government organs, and mass organizations who meet one of the following conditions shall retire:
(1) Men who have reached the age of 60, women who have reached the age of 50, and have a continuous length of service of at least 10 years.
[4] Author's Opinion
Whether the employer and the worker meet the legal and regulatory qualifications is the primary condition for forming an employment relationship between the two parties. According to the above legal provisions, reaching the statutory retirement age is a statutory reason for terminating a labor contract. If a worker has already reached the statutory retirement age at the time of hiring, they are no longer a qualified subject for a labor contract. Therefore, regardless of whether they receive pension benefits, if a worker starts a new job with an employer after reaching the statutory retirement age, the relationship between the two parties is a service relationship. For an already established labor relationship, after the worker reaches retirement age, the employer has the right to terminate the labor contract and completely end employment, or continue employment while maintaining the labor relationship, or continue employment but establish another type of employment legal relationship through mutual agreement with the worker.
