Shan Shi Sharing: Are pregnant female employees who have been dismissed to be fired on a business trip?

From the perspective of the good world, the "three -phase" female employees enjoy the right to employment, and the employer shall not terminate or terminate the labor relationship of the female employees of the "third phase".There are many labor disputes about the "third -phase" female employees. Today, the good world shared the cases of the employees who arranged for pregnant female employees to relieve the employee. This case is the female employee announced by the Wuxi Intermediate People’s Court in 2021One of the third -phase protection of typical labor disputes.

Facts of the case

According to Shan Shi, on July 5, 2016, Shi Moumou joined the Ming Da company with traffic engineering positions. The two parties signed a non -fixed -term labor contract from August 1, 2016. The salary is 3,000 yuan per month.The time is 8 hours.

On March 20, 2019, Shi Moumou had been pregnant for more than a month after diagnosis.As of May 7 of the same year, Minister Ye of Mingda Company, on behalf of the company, would like to terminate the labor contract with Shi Moumou and send four letters.Shi Moumou responded to the letter, thinking that Mingda Company did not fully consider the situation where his pregnancy was needed, and at the same time, he forcibly pressed the subject and did not consider his professional expertise and physical condition.On July 26 of the same year, Mingda Company relied on the work arrangement on July 12, 13, and 19 on the grounds of the work arrangement and shirk responsibility.Union report.

Results of labor arbitration

Shi Moumou filed labor arbitration with the Labor and Personnel Dispute Arbitration Commission (hereinafter referred to as the Arbitration Commission) in Binhu District, Wuxi City, and asked Mingda Company to pay project bonuses, year -end awards, deducting sick leave salary, annual leave salary, rent subsidy subsidy subsidy, Economic compensation, lactating wages, social insurance, maternity allowances, etc.On October 8, 2019, the Arbitration Commission ended the arbitration procedure for more than 45 days.Shi Moumou then sued to the court and asked as before.

The results of the first instance

The court of first instance believes that employers and workers shall fully fulfill their obligations in accordance with the agreement of the labor contract.

About compensation.On July 12 and 13, 2019, Mingda Company arranged for Shimou Moumou to participate in the investigation of hidden dangers in the urban and rural buses in Zhejiang, and then considered Shi Moumou’s pregnancy, and only arranged for Shimou’s "sorting information" in the hotel room.Because Shi Moumou made clear stating in the recording of Ma Jingjing on July 11, it was explicitly stated that it was too tired to rest recently.Therefore, the two have other alternative work (Huzhou technical standard).On July 19, 2019, Mingda Company arranged for the review committee organized by the owner unit organized by the Jiangshan Tiger Mountain Sports Park.Make necessary guidance and training.It can be seen that although Shi Moumou failed to participate in the work arranged by the Mingda company twice after pregnancy, he could actively communicate and propose alternatives to participate by other personnel.Therefore, Mingda’s arrangements for Shi Moumou’s work is not irreplaceable, and Shi Moumou’s pregnancy is unwilling to travel long distances.Absence.

In summary, according to the Shanshi, Mingda Company was deemed to be uncomfortable with the work arrangement without participating in the investigation work and the review.Mingda Co., Ltd. lifts its labor relationship with Shi Moumou’s illegal law and shall pay compensation.Regarding Shi Moumou’s salary, the two parties confirmed that the salary of 12 months before leaving was 81,645 yuan (except for bonuses), and the 2018 and 2019 project commission, so the average salary was 13,070 yuan.Calculated compensation was 91490.58 yuan.

The results of the second instance

The court believes that the focus of the second instance in this case is: 1. Whether the Lifting of the Lifting of the Da Da company is illegal; 2. Whether Mingda Company should pay project commission in 2018 and 2019.

Regarding the focus of disputes.If the labor contract is terminated according to the rules and regulations, it shall be limited to the serious disciplinary violations of the workers.Although the Mingda company stipulates that if it is not obedient to the work arrangement or complete the work task twice, the labor contract can be lifted, but Shi Moumou is during pregnancy. According to the law, the company shall reduce its workload as consciously, and it is not a member of the group of the Jiashan project.Therefore, although Shi Moumou’s arrangements for the support of the Jiashan project team of the Mingda company are not active, it is not a serious violation of discipline; Shi Moumou is the editor -in -chief of the report of the Hushan Sports Park project, although he has not attended the review of the scene.Yes, but it has notified the company in advance and guided colleagues to prepare and preparation for participating in the conference. No other adverse consequences occurred in the future. Therefore, the Mingda company determined that the reason and basis for its serious disciplinary violations were not sufficient.In summary, Shi Moumou did not obey the work arrangement without justified reasons. Shi Moumou’s behavior did not cause major losses of the company. Mingda Company should pay compensation in accordance with the serious violation of the rules and regulations to terminate the labor contract.

This case is compiled based on Wuxi Intermediate People’s Court (2020) Su 02 Pinning 5192.

Case comment

The law stipulates not to use Article 40 and 42 of the Labor Contract Law to dismiss the third phase of female employees, but the dismissal of severe disciplinary dismissal is not restricted.

Although theoretically, the "three phases" female employees are seriously violated and the employer can terminate the labor contract, from the perspective of the referee practice, the employer pays attention to the rationality of serious disciplinary identification.Full reason.If this case, the employer arranges a business trip, the court believes that the work is not irreplaceable, and it is unreasonable to arrange for female employees for pregnant female employees.

From the perspective of the Shanshi, the seventh national census information has just been released, and fertility is encouraged to be a general trend. Employers need to give greater tolerance to pregnant female employees.Of course, in order to prevent enterprises from saying "the government invites and pays the bill", the government should be more responsible in encouraging fertility!

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