Thoughts on claiming rights and interests after three female employees were illegally dismissed- Zhiheng Law Firm

Author | Wang Hongting Lawyer

According to Article 42 of the employment contract law, "third-term" female employees refer to female employees who are during pregnancy, childbirth and breastfeeding. According to Article 45 of the employment contract law, if an employee is during the medical period, pregnancy, childbirth and breastfeeding period, the employer shall not terminate the employment contract when the term of the employment contract expires. The term of the employment contract shall automatically extend until the expiration of the medical period, pregnancy, childbirth and breastfeeding period.

If a female employee is illegally terminated from an employment contract within the "third period", how should she claim her legitimate rights and interests?

If the employer illegally terminates the employment contract of the third female employee, it shall bear the legal responsibility for illegally terminating the employment contract. According to the relevant provisions of the employment contract law, the worker may request to continue to perform the employment contract, and the employer shall continue to perform it; if the worker does not request to continue to perform the employment contract or the employment contract cannot continue to be performed, the employer shall pay compensation in accordance with Article

87of the employment contract law.

1. Request for continued performance of employment contract, court judgment upheld

[Case: (2020) Guangdong 0391 Minchu No. 9165]

Case introduction: On August 26, 2019, Company A signed an employment contract with Wu, agreeing that the employment contract period is three years. The probation period is six months, from August 26, 2019 to February 25, 2020.

Wu was pregnant after joining the job and informed his immediate supervisor. On February 19, 2020, Company A issued the "Inspection Report", which held that Wu failed the probation period assessment. On February 24, 2020, Company A sent Wu a "Notice of Unqualified Probation Period", informing Wu that the result of the probation period assessment was incompetent for the job, and decided to terminate the "employment contract" signed by Wu and the company on August 26, 20

19from February 24, 2020.

Wu asked the company to revoke the notice and continue to perform the employment contract.

The court held that: Company A terminated the employment contract with Wu on the grounds that Wu was incompetent and did not meet the employment conditions. The factual and legal basis was insufficient. If a female employee is pregnant, giving birth, or breastfeeding, the employer shall not terminate the employment contract in accordance with the provisions of Articles

40and 41 of the Employment Contract Law.

If Wu's original department and position have been cancelled, Company A can adjust Wu's department and position, and there is no situation that the employment contract cannot be performed. The court ruled to revoke the "Notice of Disqualification of the probation period" issued by Company A, and the employment contract of both parties continued to be performed. Company A was also ordered to pay Wu the basic salary and advance performance salary from March 1, 2020 to the date when the employment contract of both parties continued to be performed.

In this case, Wu was terminated from the employment contract by the company as "incompetent for work" during her pregnancy. The court held that the company could not provide evidence to prove that Wu was incompetent for work, and his behavior was illegal. For this reason, the company should continue to perform the employment contract in accordance with Wu's appeal, and pay Wu the wages from the period of termination of the employment contract to the date of continued performance.

2. Unable to continue to perform the employment contract and claim compensation separately

[Case: (2021) Guangdong 03 Minjian No. 3665]

Case introduction: Ma joined Meilan Company on June 1, 2017. The employment contract period is from June 1, 2017 to April 4, 2020. Meilan Company issued a "Notice of Termination of employment contract" to Ma on April 3, 2020, saying that the employment contract between the two parties expired and terminated, and asked Ma to go through the separation procedures.

Ma did not go back to work after that. Ma claimed that he was pregnant before Meilan Company issued the aforementioned notice, and had informed Meilan Company of his pregnancy. Meilan Company illegally terminated the employment contract and required both parties to continue to perform the employment contract. Ma submitted an ultrasound diagnostic report, WeChat chat records, conversation recordings and audio transcripts to prove this.

The court held that: on the issue of whether Meilan Company and Ma should continue to perform the employment contract, in this case, Ma's breastfeeding period has expired on August 5, 2021, so the labor relationship between Meilan Company and Ma has expired on August 5, 2021. In addition, the labor relationship is human, and the continued performance of the labor relationship should be based on mutual trust and cooperation between the two parties, but the two parties in this case have a dispute, the basis of trust no longer exists, and Meilan Company has clearly requested the termination of the labor relationship with Ma, and Ma has not provided labor since the dispute in this case.

The court ruled that the employment contract between the two parties had been terminated.

In this case, Ma sued the court to continue to perform the employment contract, but because shortly after the termination of the employment contract between the two parties, Ma's breastfeeding period expired, Ma did not provide labor services afterwards, and the labor relationship has a trust basis, so the court held that the two parties did not continue to perform the employment contract possibility. Ma can claim compensation for illegal termination of the employment contract from the company.

3. Directly claiming compensation for illegal termination of the contract

[Case: (2020) Guangdong 0307 Minchu No. 40252]

Introduction to the case: The plaintiff joined the defendant's office on July 1, 2019 as a financial supervisor. He has signed a written employment contract. The two parties agreed to an average monthly salary of 9,000 yuan, work 8 hours a day, and work 5 days a week. The defendant started to have a holiday on January 17, 2020. Since then, due to the epidemic and maternity leave, the plaintiff has not been to the company to work.

The plaintiff began maternity leave on March 10, 2020 for a total of 128 days (ending on July 15, 2020). On March 10, 2020, the defendant issued the Plaintiff with the Notice of Payment of Wages and Salaries During Maternity Leave, informing the plaintiff that his salary during maternity leave consisted of three parts and was paid in time.

On July 23, 2020, the defendant issued an "offboarding paperwork" to the plaintiff, which terminated the employment contract with the plaintiff due to the company's business reasons. At this time, the plaintiff was still breastfeeding. For this reason, the plaintiff claimed compensation for the illegal termination of the employment contract from the defendant.

The court held that: In this case, the defendant proposed to terminate the employment contract with the plaintiff on July 23, 2020 on the grounds of poor management, while the plaintiff was still breastfeeding, and the defendant's termination of the labor relationship with the plaintiff did not comply with the above legal provisions and was illegally terminated. Therefore, the court ruled that the defendant should pay the plaintiff economic compensation for the illegal termination of the employment contract.

In this case, the employer cannot illegally terminate the female employee who is still in the "third phase". For her illegal termination of the employment contract, if the female employee no longer requires the employer to continue to perform the employment contract, she can claim compensation from the employer for illegal termination. However, since there is no labor relationship between the two parties after the illegal termination, the employer does not need to pay labor remuneration, maternity medical expenses, maternity allowances and other benefits after the termination.

The law requires

Chinese people's employment contract law

Article 40 Under any of the following circumstances, the employer may terminate the employment contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary:

(1) The worker is sick or injured due to work, and cannot engage in the original job after the expiration of the prescribed medical treatment period, nor can he engage in the work arranged by the employer separately;

(2) The worker is incompetent for the job, and after training or job adjustment, he is still incompetent for the job.

(3) The objective circumstances on which the employment contract is based have undergone major changes, resulting in the inability to perform the employment contract, and the employer fails to reach an agreement on changing the content of the employment contract after consultation with the employee.

Article 42 Where a worker falls under any of the following circumstances, the employing unit shall not terminate the employment contract in accordance with the provisions of Articles 40 and 41 of this Law:

(1) Workers who are exposed to occupational disease hazards have not undergone a pre-departure occupational health examination, or suspected occupational disease patients are under diagnosis or medical observation.

(B) suffered from occupational diseases or work-related injuries in the unit and was confirmed to have lost or partially lost the ability to work;

(4) Female employees during pregnancy, childbirth, or breastfeeding.

(5) having worked continuously for fifteen years in the unit and less than five years from the statutory retirement age;

(6) Other circumstances stipulated by laws and administrative regulations.

Article 45 Where an employment contract expires under any of the circumstances specified in Article 42 of this Law, the employment contract shall be renewed and terminated until the corresponding circumstances disappear. However, the termination of the employment contract of a worker who has lost or partially lost the ability to work shall be carried out in accordance with the provisions of the state on work injury insurance.

"Regulations on Wage Payment in Guangdong Province"

Article 29: If the employer's decision to terminate the labor relationship is revoked or the judgment is invalid, it shall pay the worker's wages during the period of the illegal termination of the labor relationship, and the wage standard shall be the worker's average normal working hours wages for the previous 12 months; if the worker has received unemployment insurance benefits, all of them shall be returned to the social insurance agency.

Regulations on the Promotion of Harmonious Labor Relations in Shenzhen Special Economic Zone

Article 58 If the labor dispute arbitration and litigation is won by the worker, the lawyer's representation fee paid by the worker may be borne by the employer, but the maximum shall not exceed 5,000 yuan; the part exceeding 5,000 yuan shall be borne by the worker.

Lawyer Profile

Wang Hongting Lawyer

Full-time lawyer of

Secretary General of Marriage and Family Department, Zhiheng Marriage, Family Affairs and Wealth Inheritance Law Center

Member of Zhiheng Company Legal Affairs Center

Contributor of Shenzhen Lawyers Association

Areas of expertise:

Marriage wealth, corporate governance

Civil and commercial affairs, labor disputes,

Infringement, bankruptcy liquidation

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