Teacher dies during a meal break while working overtime, and four refusals to treat it as a work injury

Case summary

A news report headed "sudden death during a meal break while working overtime is not a work injury" has recently trended on Weibo and set off wide discussion.

The facts were these. During the winter holiday in January 2017, Duan Xiaokang, a teacher born in the 1990s, was called in to work overtime at Nanjie Primary School in the county town to compile and tabulate the school's records. From 18 January he worked overtime continuously. On 21 January, because the school has no canteen, the school arranged for the teachers working overtime to go together to a restaurant nearby for lunch so that they could carry on working in the afternoon. While they were eating, however, Mr Duan was taken ill and was rushed to Jishan County People's Hospital, where he died the same day. The cause of death was sudden cardiac arrest.

After his death his family applied to the human resources and social security bureau for recognition of a work-related injury. Having investigated, the bureau concluded that the circumstances did not satisfy Article 15(1) of the Regulation on Work-Related Injury Insurance, so that the death did not fall within the category of injuries deemed work-related, and declined to recognise it as such.

The family challenged the decision in court. In the course of that dispute there were three court judgments and one administrative reconsideration decision, all of which set aside the refusal and expressly required a fresh determination. The bureau nonetheless refused recognition four times.

On each occasion the bureau reasoned that Mr Duan had been taken ill during the lunch break at midday, which was not working time, and that the place where he fell ill was a restaurant, not the workplace. On each occasion it declined to treat the death as a deemed work-related injury for the same reason, namely that the circumstances did not satisfy Article 15(1) of the Regulation.

The law

Article 15(1) of the Regulation on Work-Related Injury Insurance provides that an employee's death is deemed to be a work-related injury where the employee dies of a sudden illness at work and at the workplace, or dies after ineffective emergency treatment within 48 hours.

Here Mr Duan went to work overtime at the school's request, and the break for a meal was also arranged by the school for the purpose of returning to work afterwards, so that the occasion should certainly be treated as working time at the workplace; and the 48 hours were not exceeded. The death should therefore have been recognised as work-related.

The bureau's understanding of the law was excessively mechanical. Moreover, having had its refusal set aside by the courts, it insisted on its original view, contrary to the law of the State.

Article 71 of the Administrative Litigation Law of the People's Republic of China provides that where a people's court orders a defendant to make a new administrative act, the defendant may not make an act substantially the same as the original on the same facts and grounds.

Under the Administrative Litigation Law, then, where a court requires an administrative organ to make a new act, the organ must alter its earlier erroneous decision unless new facts and grounds are available. The bureau made the same determination on the same facts and grounds on each occasion, which was a disguised refusal to comply with the judgments of the courts. Such conduct is in fact unlawful.

Article 96 of the Administrative Litigation Law of the People's Republic of China provides that where an administrative organ refuses to comply with a judgment, ruling or mediation statement, the court of first instance may take the following measures:

(1) where a fine is to be refunded or a sum of money is to be paid, notify the bank to transfer the amount out of the organ's account;

(2) where the organ fails to comply within the prescribed period, impose a fine of between RMB 50 and RMB 100 a day on the person in charge of the organ from the date of expiry;

(3) publish the organ's refusal to comply;

(4) make a judicial proposal to the supervisory organ or to the administrative organ at the next higher level, and the organ receiving the proposal shall deal with the matter in accordance with the relevant provisions and inform the people's court of how it has done so;

(5) where the organ refuses to comply with a judgment, ruling or mediation statement and the social effects are bad, detain the person directly in charge and the other persons directly responsible; where the circumstances are serious and a crime is constituted, pursue criminal liability in accordance with law.

Administrative organs and the importance of knowing the law

This episode shows plainly how important it is for an administrative organ to understand and apply the law correctly. Most of those who apply to a human resources and social security bureau for recognition of a work-related injury have already suffered a misfortune, and should not be hurt a second time.

The law does not yet expressly provide that an accident during a meal and rest break taken in the interval of overtime work counts as a work-related injury, but in keeping with the legislative purpose of protecting employees' rights the authorities should adopt a broader reading and allow employees the human consideration the law intends.

An administrative organ should not, and must not, read provisions as a pedant would. Only by genuinely grasping the purpose behind a law can an organ truly serve the interests of the people and prevent the rule of law from losing the warmth it should have.