Part-time Salesperson’s Employment Claim Rejected by the Court

 

 

Yang had a full-time job in Company A and had a part-time job as a salesperson in Company B. Yang’s gross salary in Company B included base salary and sales bonus, which was directly paid by Company B’s legal representative in cash. However, Company B neither listed Yang as an employee nor paid social insurance for him. Yang brought a lawsuit against Company B and claimed that the part-time employment relationship existed between Yang and Company B. 

 

The Court held that part-time employment relationship is a special employment relationship under which a part time employee’s working hour shall not exceed 4 hours a day and 24 hours a week. Employees shall be under management and supervision of the Employer, which is the essential characteristic in employment relationship. In this case, Company B didn’t have a fixed working hour requirement and Yang could work for Company B flexibly. In addition, Company B didn’t give Yang any work instruction. The Court further held that the relationship between Company B and Yang was not protected by Employment Law. 

 

 

 

Although this case is about the nature of Yang’s part-time work, the Court’s judgement reveals some of the basic requirements for the employment relationship. There are three basic factors in determining whether the work relationship is employment relationship.  

 

Employers can be enterprises, government agencies, government-sponsored institutions, private non-enterprise unit, self-employed business, and non-profit organization. However, an individual cannot be an employer.  

 

Employees have the age requirement. No person under 16 years of age can be employed. If a person reaches his or her retirement age and if he or she has the retirement insurance cover, such person’s work relationship with a third party cannot be regarded as employment relationship. 

 

A person who is not subject to the employer’s general work rules cannot be regarded as an employee. The employee, under the management of the employer, performs its duty in exchange for the salary. 

 

The work performed by the employee is part of the employer’s business.

 

a)  Parties’ intents to having an employment relationship;

b)  Who provides the work tools?

c)  Is the employer liable for the employee’s labor risks, for example, workplace injury? 

d)  Does the employer fix the working hours and arrange the working place?

e)  Is the employee under supervision and management of the employer?

f)  The method of payment and calculation of the remuneration;

g)  Does the employer pay the social insurance for the employee?

 

The application of the above factors in determining the existence of employment relationship is fact‐specific, case‐by‐case assessment. Both the employer and employee should assess and weigh each of the factors with respect to the actual relationship between the parties. This article is only a generic briefing and is not a substitute for detailed legal advice. For further information or legal advice on specific circumstances, please do not hesitate to contact Yun Ya lawyers.