The "Employee Handbook" not only stipulates the specific handling method of "leaving the post without the approval of the department leader for more than three consecutive days during the labor contract period", but also clarifies the humanized management of "the labor contract cannot be terminated during pregnancy".
【Basic facts of the case】
On March 25, 2012, Ms. Li joined a company.
On March 1, 2018, Ms. Li signed the last labor contract with the company, stipulating that the contract would be terminated on February 28, 2019, the monthly salary was not lower than the Beijing minimum wage, and if Party A's production work tasks were insufficient so that Party B was waiting for work, Party A would pay living expenses according to 70% of the Beijing minimum wage. On the same day, Ms. Li signed the confirmation of the "Employee Handbook", which stipulates that if she leaves her post for more than three consecutive days without the approval of the department leader during the labor contract period, the company has the right to recover (or deduct) the salary of the insufficient number of days and the loss caused to the company by not resigning; The company cannot terminate the labor contract under any of the following circumstances: (3) The female employee is pregnant, confined, or breastfeeding.
On March 15, 2019, the company sent Ms. Li the "Notice of Termination of Labor Contract", which recorded that Ms. Li has worked in the company since February 26, 2019, and did not go through the resignation procedures during this period, which seriously violated the company's rules and regulations, and after repeated reminders, the company decided to terminate the labor contract relationship with Ms. Li. Ms. Li received the Notice of Termination of Employment Contract on 19 March 2019.
Ms. Li said that on February 25, 2019, she went to the company to submit a leave slip due to pregnancy until March 4, 2019. On February 26, 2019, the company's manager verbally dismissed Ms. Li on the grounds that she was pregnant and did not return to work.
On March 6, 2019, Ms. Li applied to the arbitration commission for arbitration, requesting continued performance of the employment contract (other matters will not be discussed here). On June 3, 2019, the arbitration commission rendered an award rejecting Ms. Li's arbitration request.
Ms. Li was not satisfied and sued the court.
【By example】
First instance judgment: During the pregnancy, the company has no right to terminate the labor contract according to the rules and regulations
The court held that a party has the responsibility to provide evidence to prove the facts on which its claim is based or the facts on which the other party's claim is refuted. Where there is no evidence or the evidence is insufficient to prove the parties' factual claims, the party bearing the burden of proof shall bear the adverse consequences.
Ms. Li claimed that the company dismissed her on February 26, 2019 because of her pregnancy, and has not been to work since then, but did not submit corresponding evidence to prove it, and the court rejected it. The company said that she took leave until March 4, 2019, and did not return to work after that, so the company terminated her contract with Ms. Li in accordance with the company's rules and regulations. After the review of the court, the "Employee Handbook" stipulates that if the employee leaves the post for more than three consecutive days without the approval of the department leader during the labor contract period, the company has the right to recover (or deduct) the salary of the insufficient number of days and the loss caused to the company by not resigning; The company cannot terminate the labor contract under any of the following circumstances: (3) The female employee is pregnant, confined, or breastfeeding. The Employee Handbook clearly stipulates that a female employee cannot terminate the employment contract during pregnancy, nor does it stipulate that the company has the right to terminate the contract accordingly. Now that Ms. Li is pregnant, according to the company's rules and regulations, the company has no right to terminate the employment contract with Ms. Li. Therefore, the court upheld Ms. Li's request to continue to perform the labor contract.
Company appeal: There is nothing wrong with absenteeism
After the expiry of her sick leave on 4 March 2019, Ms. Li did not provide labor to the company or ask the company for leave, and Ms. Li's conduct constituted absenteeism. Ms. Li has signed the confirmation of the Employee Handbook, so the Employee Handbook is binding on Ms. Li and there is nothing wrong with the Company terminating the employment relationship with Ms. Li.
The second-instance judgment: "The labor contract cannot be terminated during pregnancy" cannot be automatically understood to mean that as long as the female employee is pregnant, the employer has no right to terminate the labor contract
The court of second instance added that the confirmation of the Employee Handbook stated that "... The employee handbook has been fully discussed and negotiated on an equal footing, and as the basic management system of the unit, I have completed the training and read it carefully. Have a thorough understanding of the administrative and legal implications of the employee handbook; I hereby pledge that all the contents stipulated in this "Employee Handbook" will be strictly adhered to...", signed by Ms. Li below. Ms. Li acknowledged that the confirmation was signed by herself, but denied that she had issued the Employee Handbook and had not been trained.
The court held that Article 90 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China provides: "A party shall provide evidence to prove the facts on which its claims are based or the facts on which the other party's claims are refuted, unless otherwise provided by law." If the parties fail to provide evidence or the evidence is insufficient to prove their factual claims before the judgment is rendered, the party bearing the burden of proof shall bear the adverse consequences. ”
Regarding continued performance, on March 15, 2019, the company sent Ms. Li a Notice of Termination of Labor Contract, deciding to terminate the labor contract relationship with Ms. Li on the grounds that she did not show up for work, did not go through the resignation procedures, and seriously violated the company's rules and regulations; Ms. Li received the notice on 19 March 2019. The company submits the "Employee Handbook" and "Employee Handbook" confirmation, and the "Employee Handbook" stipulates that those who leave the post for more than three consecutive days without the approval of the department leader during the labor contract period will be automatically resigned. The confirmation of the Employee Handbook shows that Ms. Li fully understands the management and legal implications of the provisions of the Employee Handbook and undertakes to strictly abide by them, so the Employee Handbook is binding on Ms. Li. The company claimed that Ms. Li took leave until March 4, 2019 due to her pregnancy, and submitted a leave slip to prove it; Ms. Li acknowledged the leave and also acknowledged that she did not arrive for work after 26 February 2019. According to Article 42 of the Labor Contract Law of the People's Republic of China, if a female employee is pregnant, confinement or breastfeeding, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law. However, female employees who are pregnant should also abide by labor discipline and the rules and regulations of the employer, and should also complete the corresponding leave procedures if they need to rest due to pregnancy. There is no evidence that Ms. Li fulfilled the leave formalities after 4 March 2019, nor is there evidence that the Company dismissed Ms. Li on 26 February 2019 because she was pregnant, so Ms. Li's failure to attend work constituted absenteeism and violated the rules and regulations of the employer. When the company terminated Ms. Li's labor contract, Ms. Li was pregnant, but the company made the termination decision because Ms. Li violated the rules and regulations of the employer, that is, in accordance with the provisions of Article 39 of the Labor Contract Law of the People's Republic of China, and the termination did not violate the law and was not an illegal termination. At the same time, although the Employee Handbook clearly stipulates that a female employee cannot terminate the labor contract during pregnancy, it can be seen from the content of the Employee Handbook that it also stipulates the specific treatment of "leaving the post for more than three consecutive days without the approval of the department leader during the labor contract period" and "the labor contract cannot be terminated during pregnancy". This is also inconsistent with the legislative spirit of the Employment Contract Law of the People's Republic of China. In summary, the court of first instance ruled that the company and Ms. Li continued to perform the labor contract improperly, and the court corrected it. The company's appeal for non-performance of the employment contract with Ms. Li was based on law and upheld by the court.
Application for retrial: It is illegal to dismiss her knowing that she is pregnant without giving any compensation
On February 26, 2019, the company learned that Ms. Li was pregnant and dismissed her without paying any compensation.
The retrial ruled that absenteeism was a violation of the rules and regulations, and the termination was not illegal
After review, the court held that the company sent Ms. Li a Notice of Termination of Labor Contract on the grounds that she had not arrived at work, failed to go through resignation formalities, and seriously violated the company's rules and regulations, and decided to terminate the labor contract relationship with Ms. Li. The company claimed that Ms. Li took leave until March 4, 2019 due to her pregnancy, and submitted a leave slip to prove it. Ms. Li acknowledges the leave of absence and acknowledges that she did not work after 26 February 2019, and Ms. Li has not submitted evidence that she fulfilled the leave formalities after 4 March 2019, nor has she submitted evidence that the Company dismissed her on 26 February 2019 because of her pregnancy. Therefore, Ms. Li's failure to show up for work constituted absenteeism and violated the rules and regulations of the employer. The termination of the company does not violate the law and is not an illegal termination. The judgment rendered by the court of second instance on the basis of the facts ascertained and combined with the corresponding evidence was not improper.
【The editor has words】
Previously, the editor talked about a point of view: third-phase employees, don't take yourself too seriously, and don't take yourself too seriously https://mp.weixin.qq.com/s/FSG81EkYQpmtvifnMb1R2w.
Some people think that I am a pregnant employee, and the company does not dare to fire me; Some people think that I am a maternity employee, and even if I make a mistake, the company does not dare to treat me as such; Some people think that I am a lactating employee, do some part-time to earn milk powder money, even if it has a serious impact on the completion of the work tasks of the unit, the company does not dare to embarrass me...
Wrong!
Regardless of whether you are a third-term employee, as long as there is one of the circumstances under Article 39 of the Labor Contract Law of the People's Republic of China, the company will resign. Not only can you terminate the employment contract, but you can also not give a penny of financial compensation. Taking a step back, even if the third-phase employee does not have the situation of Article 39 and voluntarily resigns, there will be no so-called economic compensation. Of course, the boss is kind, pity you, and give some money, that is just a favor.