One question and one answer ‖ After discovering pregnancy with the company’s termination of labor relationship, can you ask for a labor relationship?

For the question of the topic, we should discuss the following situations according to several methods that the labor contract is terminated: 1. The situation of the negotiation between the two parties to unanimously terminate the labor contract;Unilaterally lift the labor contract;

1. The situation of the negotiation between the two parties to lift the labor contract

We have discussed in the previous article "One question, one answer, or whether the employer can terminate the labor contract."

So after the two parties negotiated the labor contract, the female employees found that they were pregnant. Can they ask for restoration of labor relationships with employers?

In practice, the Arbitration Commission and the court mainly review the following three points: (1) Whether there are major misunderstandings and faults of faults when negotiating the labor contract between the two parties;(3) Whether the content of the agreement has a compulsory provisions that violate the law and administrative regulations.

If the female employees cannot verify the above three points, the referee will generally determine that the two parties negotiate the agreement to unanimously terminate the labor contract, and generally do not support the request for female employees to restore the labor relationship.

As for the negotiation of the two parties to unanimously terminate the labor contract, whether the employer needs to pay the economic compensation, see the previous article "The employer negotiates with the workers to terminate the labor contract, does it need to pay the economic compensation?"

2. Female employees unilaterally lifted the labor contract

Female employees have proposed to terminate the labor contract divided into two situations: (1) Female employees actively resigned due to personal reasons; (2) Female employees were forced to propose a labor contract for faults for employers.

In practice, these two types of circumstances are deemed to be the initiative to propose a labor contract. The difference is that those who actively resign due to personal reasons have no right to request the employer to pay economic compensation.Take the initiative to leave, whether the employer needs to pay the economic compensation ".According to Article 38 of the Labor Contract Law, if the employer is forced to propose a labor contract due to the error of the employer, according to the provisions of Article 46 (1) of the Labor Contract Law, the female employee shall pay the economic compensation for the female employee’s economic compensation to the female employeeEssence

So after the female employees propose to the employer to lift the labor contract, they find that they are pregnant if they are pregnant. Can they require the employer to restore the labor relationship?We are divided into two situations to discuss: The first is that female employees submit an application for resignation to the employer and delivered to the employer. HoweverIf the resignation application is notified; the second is that the cancellation application of female employees is proposed after the two parties terminate the labor relationship.

For the first situation, the female employee’s application for resignation is equivalent to the offer. According to the provisions of Article 475 and 477 of the Civil Code, even if the resignation application of the female employee has been delivered to the employer, the female employee will withdraw from the resignation.The notice of the application has not reached the employer if the employer did not agree to the female employee’s departure, the previous leaving application offer should be deemed to be canceled in accordance with the law.Female employees take the initiative to propose to resign from their labor relationship, and the two sides should continue to perform their labor contracts.

For the second situation, if the resignation application of female employees is proposed after the two parties terminate the labor relationship. At this time, the resignation application has taken effect and fulfilled. The proposition of female employees requesting to restore the labor relationship is generally not supported.According to the current relevant labor laws and regulations, female employees have no right to enjoy the "three -phase" treatment of the original employees of the original employer.

3. The situation of the employer unilaterally lifted the labor contract

The situation should also be divided into two situations: (1) those who employer units to lift the labor contract illegally;EssenceFor specific discussions, please refer to the previous article "One question, one answer," within the "three issues" of female employees, whether the employer can terminate the labor contract ".

To sum up, the employer cannot unilaterally relieves the labor relationship with the female employees in the "third phase" for the expiration of the female employee’s medical care period, the incompetent work, the change of the situation, the economic layoffs, and the expiration of the contract.This situation is illegal lifting.However, if the female employee violates Article 25 of the Labor Law and Article 39 of the Labor Contract Law in the "Three Phases", the employer may terminate the labor contract according to law.

If the female employee is found to be pregnant after lift the labor contract by the employer, of course, it has the right to advocate that the employer will restore the labor relationship, continue to perform the labor contract, and pay the "three -phase" treatment.However, if it is because of the fault of female employees, it is dismissed by the employer in violation of relevant laws and regulations. Even if he finds that he is pregnant afterwards, he has no right to advocate that the employer will restore the labor relationship.

Fourth, due to the expiration of the labor contract, the situation of lifting the labor contract

In practice, there are often situations where the labor contract between the two parties is expired and the contract is naturally lifted.In this regard, the Labor Contract Law stipulates special protection for female employees in the "three issues", of which Article 45 stipulates that "the labor contract period expires, and the labor contract will beIt should be continued to end when the corresponding situation disappears. "

Therefore, after the female employee expires with the employer and the employer lifts the labor relationship, he finds that if he is pregnant during his job, you can ask the employer to restore the labor relationship until the female employee’s "third phase" expires. During this periodThe "three -phase" treatment of the unit.

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