Can I get fired when I am pregnant?4 cases tell you the answer!

Sheng Moran joined Yongchang Company on January 1, 2015 to engage in sales.

In December 2016, Sheng Moran was pregnant and informed the company.Because Sheng Moran could not be tired after pregnancy, it was reduced to running customers, which caused it to fail to complete the sales performance for several months.The company trained Sheng Moran.After the training, Sheng Moran could not complete the sales performance.

On May 20, 2017, Yongchang Company fired Sheng Moran on the grounds that Sheng Moran was indifferent to work. After training, Sheng Moran was still hired.

Links:

Article 40 of the Labor Contract Law has one of the following circumstances, the employer notify the worker himself in writing in writing in writing or paying an additional monthly salary in writing in writing.Successive work, after training or adjustment of jobs, still cannot be competent; Article 42 If a worker has one of the following circumstances, the employer shall not terminate the labor in accordance with the provisions of Article 40 and 41 of this law.Contract: (4) Female employees during pregnancy, birth, and lactation;

Analysis:

Although in accordance with the provisions of Article 40 (2) of the Labor Contract Law, Sheng Moran is unusual. After training, the company has the right to dismiss it.Therefore, in accordance with the provisions of Article 42 (4) of the Labor Contract Law, the company shall not fire Sheng Moran.

Zhu Manniang joined Ningyuan Company on January 1, 2015 to engage in sales.

In December 2016, Zhu Manniang was pregnant and informed the company.After pregnancy, Zhu Manniang often asked for sick leave because of his bad health.

On May 20, 2017, the company noticed that there was a number of illnesses submitted by Zhu Manniang. After going to the hospital for inspection, she found that the sick fake strip submitted by Zhu Manniang was false.According to the company’s regulations, false diseases and leaves are acts that seriously violate the company’s rules and regulations, and the company has the right to fire.Ningyuan fired Zhu Manniang.Zhu Manniang did not reluctant, and said that the law of female employees in the third phase of the third phase of female employees had special protection, and the company was not allowed to dismiss at will.

Links:

Article 39 of the Labor Contract Law in Article 39 If a laborer has one of the following circumstances, the employer may terminate the labor contract: (2)

Analysis:

Although Juman Niang is a female employee in the third phase and enjoys special protection of the firing of the law, the special protection is limited to the unscrupulous dislocation (Article 40) and the economic layoffs (Article 41).In addition, the law will no longer carry out special protection.Therefore, the unit can negotiate with the third -phase female employee to unanimously lift the labor contract (Article 36), or the third phase of female employees can be dismissed (Article 39).In the case, because Zhu Manniang had false illness and leave, he had seriously violated the company’s rules and regulations. Therefore, the company fired Zhu Manniang and was a legitimate dismissal.

Sheng Hualan joined the Zhongqin Company on January 1, 2015, and the two sides signed a three -year -old labor contract (January 1, 2015 to December 31, 2017).

On December 31, 2017, the labor contract period expired, and the company terminated the labor contract with Sheng Hualan.

On January 5, 2018, Sheng Hualan felt physical discomfort. He went to the hospital for examination and found that he had been pregnant for more than 1 month.

On January 6, 2018, Sheng Hualan found Yuan’s personnel Yuan’s manager Yuan’s, showing the hospital to prove that the fact that he was pregnant when he was working and asked to restore the labor relationship.

Yuan’s said: Sheng Hualan did not inform the company before the termination of the contract, and it was pregnant.If the company will not be terminated, the labor relationship between the two parties has been terminated and cannot be recovered.

On January 8, 2018, Sheng Hualan applied for labor arbitration and demanded restoration of labor relations and continuing to perform labor contracts.

Links:

Article 44 of the Labor Contract Law has one of the following circumstances, the termination of the labor contract: (1) the expiration of the labor contract period; Article 45One of the time, the labor contract should be terminated to the corresponding situation when disappearing.

Analysis:

According to the law, if the female employee expires within the third phase and the labor contract period expires, the labor contract cannot be terminated, and it will not be terminated until the disappearance of the third phase.

Although the company and Sheng Hualan did not know the fact that Sheng Hualan had become pregnant when he terminated the labor contract, Sheng Hualan was indeed pregnant during the labor contract period.

Because female employees have a process to be discovered after conception, from objective conception to subjective understanding that they have become pregnant, there is a time process in themselves.Therefore, the company should not be supported by Sheng Hualan’s fact that it had not been informed of its pregnancy before the termination of the labor contract.Therefore, the company’s termination is illegal.Sheng Hualan requested to restore labor relations and continue to perform labor contracts.

Sheng Rulan joined the Wenfu Company on January 1, 2015, and the two sides signed a three -year -old labor contract (January 1, 2015 to December 31, 2017).

On December 26, 2016, Wenfu Company decided to dissolve in advance due to difficulty in operating, and terminated the labor contract with Sheng Rulan.

On January 5, 2017, Sheng Ru Lanjue was unwell and went to the hospital for examination and found that he was pregnant for more than a month.

On January 6, 2017, Sheng Rulan found Wenshi, the manager of the company’s personnel department, and presented the hospital to prove that the fact that he was pregnant when he was working and asked to restore the labor relationship.

Wen’s said: The company has been dissolved and cannot restore the labor relationship between the two parties.

On January 8, 2017, Sheng Rulan applied for labor arbitration and demanded restoration of labor relations and continuing to perform labor contracts.

Links:

Article 44 of the Labor Contract Law has one of the following circumstances, the termination of the labor contract: (5) The employer is revoked, ordered to close, revoke or the employer decided to dissolve in advance;

Analysis:

Although Sheng Rulan is a female employee in the third phase, the statutory situation of the third phase of female employees cannot be terminated, which is limited to the situation of the contract expire (to the case of the third phase of the situation). In addition, the law will no longer protect it.EssenceTherefore, the company decides to dissolve in advance, and of course, it can terminate the labor contract with the employees according to law, and the third -phase female employee is no exception.Therefore, Sheng Rulan requires restoration of labor relations and should not be supported.

Raise new questions:

Because the unit has terminated the labor contract with the third phase of female employees because of the legal reasons such as early dissolution. Do you need to pay the salary of the third phase of female employees to the case of the third phase?

answer:

The prerequisite for the unit paying wages is that there is a labor relationship between the unit and the third phase of the female employees. Since the unit has terminated the labor contract with the third phase of female employees in accordance with the law because of the legal reasons such as early dissolution.The prerequisite (existing labor relationship), of course, the unit does not need to pay the subsequent salary of female employees in the third phase of female employees.

Of course, from the perspective of protecting the third phase of female employees in the third phase of the female employees, the unit needs

Links:

The Minutes of the Labor Arbitration Case of Jiangsu Province "VII. When the enterprise is disbanded, or is it possible to terminate the labor contract of the" third phase "female employee?If it is terminated, in addition to paying economic compensation in accordance with the regulations, whether other treatments should be paid to be disbanded by the employer, or being revoked in accordance with the law, it is a legal situation for terminating the labor contract.Therefore, after the use of the above -mentioned termination of the labor contract, the "three phases" of female employees should also be terminated, and the economic compensation of female employees should be paid in accordance with regulations.In order to protect the legitimate rights and interests of female employees, starting from the principles conducive to workers, the employer should pay the living expenses, maternity leave wages, and fertility costs in the third phase of the female employee.

(Add, pay 80%of the minimum wage standards during pregnancy and lactation, and pay for the period of delivery according to maternity leave salary standards).

The firing protection of female employees in the third phase (the dismissal here is a big concept, which is lifted and terminated), limited to three cases: 1. The unit cannot be misaligned (Article 40);(Article 41); 3. The termination of the contract cannot be terminated (Article 45). In addition, the female employees in the third phase of the third phase will not be protected.

Therefore, within the third phase, female employees do need special care of units and society, but this is not the third phase of female employees from the Sangfang sword from firing.The third phase of female employees still need to abide by the rules and regulations of the unit and cannot violate the regulations of the unit at will. Otherwise, once a serious violation of the unit rules and regulations or serious violations of labor discipline, the unit can also notify the third phase of female employees to terminate the labor contract at any time.And no need to pay any economic compensation.

Source: Human Resources Law

Text | 深 Wujie, Shenzhen Labor Labor Attorney, part -time arbitrator

Baby Scale-(24inch)


Posted

in

by

Tags: