After the woman Xiaoli (pseudonym) was fired, she found that she was pregnant during her work.But after the company learned of this situation, it did not decide to withdraw the fired.Xiaoli advocates compensation and the "third phase" treatment. Can this be supported?On July 6, a reporter from Hyundai Express learned that recently, Jiangsu Qidong Court tried the case.
Xiaoli is a marketing person in a real estate company.On May 11, 2022, the company fired Xiaoli with poor production and operation status.But shortly after, Xiaoli found that she was pregnant before being fired.On May 23, Xiaoli sent the pregnancy inspection report to the company staff via WeChat to prove that she was pregnant before the company issued a removal notice, saying that the company insisted that it would compensate him for losses.But after receiving the news, the company did not dismiss Xiaoli.On January 1, 2023, Xiaoli gave birth to a child naturally.
Due to the results of negotiation with the company, on May 16, 2022, Xiaoli applied for labor arbitration to Qidong Labor and Personal Dispute Arbitration Commission, asking the company to pay it to the illegal termination of the labor contract compensation, "third phase (pregnancy, breastfeeding period, breastfeeding period, breastfeeding"Period)" salary and social security and provident fund benefits.On July 12, 2022, the arbitration commission ruling supporting the company to pay compensation from Xiaoli, but it did not support the requests such as the "three -phase" salary that it proposed.
Xiaoli was dissatisfied with the arbitration and filed a lawsuit on the court on August 24, 2022.
After trial, the Qidong Court believed that although the company did not know that Xiaoli was pregnant when it was notified of the labor contract notice on May 11, Xiaoli would get the fact that the company was pregnant and medical examination before the company issued a notice before the company issued the company.As a result, the company did not revoke Xiaoli’s decision to dismiss Xiaoli. The dismissal violations of laws and regulations were illegal. It should pay Xiaoli to pay illegal liberation of labor contract compensation for 5033.33 yuan.
Regarding Xiaoli’s "three -phase" salary, social security, and provident fund treatment.After the company’s notice of the company’s termination of the labor contract is not issued, it will no longer provide labor for the company. The court decided that the company should compensate Xiaoli’s losses during pregnancy and lactation according to the minimum wage standard of Qidong City.Regarding Xiaoli ’s breastfeeding expectations, social security, and provident fund losses, there is no basis for the law, and the court does not support it.The judgment is now effective.
Judge said:
Article 42, paragraph 4 of the Labor Contract Law of the People’s Republic of China stipulates that if female employees shall be lifted and produced during pregnancy, output, and lactation, the employer shall not be relieved or economic layoffLabor contract for female employees in the period and lactation.This clause is to prevent employers from dismissing female employees in the "third phase" to show special labor protection for female employees.In this case, the company fired Xiaoli on the grounds of ethical layoffs. Although the removal notice did not know that Xiaoli was pregnant, Xiaoli informed the company after the company issued the fact that the company was pregnant before the company did not notify the company.The remarks of the removal of Xiaoli, the dismissal is illegal, and the compensation should be paid.
Regarding the "three phases" period of whether female employees can be dismissed by the law and the issues of social security and provident fund benefits, there are no clear regulations on the law, so the system should be explained to the issue.
Article 27, paragraph 1, paragraph 1 of the "Women’s Rights Protection Law of the People’s Republic of China" stipulates that "no unit may reduce the salary of female employees due to marriage, pregnancy, maternity leave, breastfeeding, etc.Contract or service agreement. However, female employees require the termination of labor (employment) contract or service agreement ".
Article 42 of the Labor Contract Law of the People’s Republic of China stipulates that "the employer shall not use the labor contract with the" third phase of the female employee "by the employer of the employer or the layoffs.
Article 5 of the "Special Regulations for Women’s Workers’ Labor Protection" stipulates that "employers shall not reduce their wages due to pregnancy, fertility, breastfeeding due to female employees, dismissal, and termination of labor or hiring contracts."
It can be seen through the above laws and provisions that the law can protect the special labor protection of female employees by restricting the right to the termination of employers.In fact, if the employer will only claim compensation after illegal lifting of the labor contract with the "third phase" female employee, then the employer does not have the legal consequences of the law employees and other ordinary workers.Any difference, obviously there is a legislative meaning of the special protection of the "three phases" of female employees in violation of the law.
Article 98 of the Labor Contract Law of the People’s Republic of China stipulates that "If the conditions stipulated by the employer’s illegal law to terminate the labor contract or deliberately delay the establishment of a labor contract, the labor administrative department shall order correction;For the liability for compensation "; for the" third phase "female employees, after the termination of the labor contract, the" third phase "female employees have lost labor re -employment capabilities in the short term due to their physiological special period.If the labor contract agrees to infringe the legitimate rights and interests of female employees, it shall compensate the losses of the workers’ pregnancy and output, and the loss is compensation.
As for the wages of breastfeeding, the current laws in my country do not clearly stipulate that the female employee’s breastfeeding vacation treatment is given. After the maternity leave expires, female employees generally need to go to work normally. The employer gives a certain "breastfeeding time". Therefore, it is difficult to support the request in this case.As for the loss of social security and provident funds, the court does not support it because it does not meet the actual performance of the law.
Correspondent Wei Aici Modern Express+reporter Yan Junchen
(School counterpart Zhang Hongxia)
