Can I get fired when I am pregnant?Four cases tell you

Source: Chinese Women’s Daily

■ 冼 冼 冼

Within the third phase, female employees give special protection for the law, and the unit and society should also give special care, but this is not the third phase of the female employee exempted from the Fangfang sword.The third phase of female employees still need to abide by the rules and regulations of the unit, and cannot violate the regulations of the unit at will. Otherwise, once it constitutes a serious violation of the rules and regulations of the unit or seriously violates labor discipline, the unit can also notify the third phase of female employees to terminate the labor contract at any time, and the third phaseNo need to pay any economic compensation.

In the third phase of the female employees, although they cannot be competent or fired

Shengmou joined a company on January 1, 2015 to engage in sales.

In December 2016, Sheng was pregnant and informed the company.Because Sheng could not be tired after pregnancy, he reduced the running customers and caused him to fail to complete the sales performance for several consecutive months.The company trained Shengmou.After the training, Shengmou still could not complete the sales performance.

On May 20, 2017, the company was dismissed on the grounds that Sheng was not worthy of work.

□ evaluation

Article 40 of my country’s Labor Contract Law stipulates that if there is one of the following circumstances, the employer notify the worker himself in writing in writing in writing or pay an additional salary of the worker. Work, after training or adjusting the job, still cannot be competent.

Article 42 stipulates that if a worker has one of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Article 40 and 41 of this Law: (4) Female employees during pregnancy, birth, and lactation.

Although in accordance with Article 40 (2) of the Labor Contract Law, the workers are uncomfortable. After training, they still have the right to dismiss the company.However, because Shengmou enjoys the protection of firing during the three periods, it shall not be fired in accordance with Article 42 (4) of Article 42 (4) of the Labor Contract Law.

In the third phase, female employees can be dismissed seriously in violation of rules and regulations

Zhu enrolled in a company on January 1, 2015 and engaged in sales.

In December 2016, Zhu was pregnant and informed the company.After pregnancy, Zhu often asked sick leave because of his poor health.

On May 20, 2017, the company noticed that there was a number of illnesses submitted by Zhu. After going to the hospital for inspection, he found that the sick fake strip submitted by Zhu was false.According to the company’s regulations, false diseases and leaves are acts that seriously violate the company’s rules and regulations, and the company has the right to dismiss.The company then fired Zhu.

Zhu believes that the law of female employees in the third phase of the third phase of female employees is specially protected, and the company shall not be dismissed at will.

□ evaluation

Article 39 of the Labor Contract Law stipulates that if a worker has one of the following circumstances, the employer may terminate the labor contract: (2) the rules and regulations of the employer seriously.

Although Zhu is a third -phase female employee and enjoys special protection for firing from law, this special protection is limited to unscrupulous dislocation (Article 40) and economic layoffs (Article 41).In addition, the law will no longer carry out special protection.Therefore, the unit can negotiate with the third -phase female employee to unanimously lift the labor contract (Article 36), or the third phase of female employees can be dismissed (Article 39).

In this case, because Zhu had false illnesses and leave, it had seriously violated the company’s rules and regulations. Therefore, the company fired Zhu was a legitimate dismissal.

After the termination of the labor contract, I found that pregnancy can be discovered, and the labor relationship can be required to restore the labor relationship

Hua Mou joined a company on January 1, 2015, and the two sides signed a three -year labor contract (January 1, 2015 to December 31, 2017).

On December 31, 2017, the labor contract period expired, and the company terminated the labor contract with Hua Mou.

On January 5, 2018, Hua Mou felt unwell. He went to the hospital for examination and found that he was pregnant for more than a month.

On January 6, 2018, Hua Mou found the manager of the company’s personnel department and presented the hospital to prove that the fact that he had become pregnant when he was working and asked to restore labor relations.

The manager of the personnel department said that Hua Mou did not inform the company’s pregnancy before the termination of the labor contract.If the company will not be terminated, the labor relationship between the two parties has been terminated and cannot be recovered.

On January 8, 2018, Hua Mou applied for labor arbitration and demanded restoration of labor relations and continuing to perform labor contracts.

□ evaluation

Article 44 of the Labor Contract Law stipulates that if there is one of the following circumstances, the labor contract is terminated: (1) the expiration of the labor contract period;

Article 45 stipulates that if the labor contract period expires, if there is one of the situation stipulated in Article 42 of the Law, the labor contract shall continue to the time when the corresponding situation will disappear.

According to the law, if the female employee expires within the third phase and the labor contract period expires, the labor contract cannot be terminated, and it will not be terminated until the disappearance of the third phase.

Although the company did not know the fact that he was pregnant when he terminated the labor contract, Hua Mou did become pregnant during the period of labor contracts.

Because female employees have a process to be discovered after conception, the company should not be supported by the fact that the company did not inform him before the termination of the labor contract, and the company’s termination was illegal.Hua Mou requested to restore labor relations and continue to perform labor contracts.

After the company disbanded in advance, I found that pregnancy was found, and the labor relationship could not be restored

Lan Mou joined a company on January 1, 2015, and the two sides signed a three -year labor contract (January 1, 2015 to December 31, 2017).

On December 26, 2016, the company decided to dissolve in advance due to difficulty in operating, and terminated the labor contract with Lanmou.

On January 10, 2017, Lan Mou felt unwell and went to the hospital for examination and found that he had been pregnant for more than a month.

On January 11, 2017, Lan Mou found the hospital’s personnel department to show the hospital to prove the fact that he was pregnant and asked to restore labor relationships.

The company said: The company has been dissolved and cannot restore the labor relationship between the two parties.

Later, Lan Lan applied for labor arbitration and asked to restore labor relationships and continue to perform labor contracts.

□ evaluation

Article 44 of the Labor Contract Law stipulates that if there is one of the following circumstances, the labor contract is terminated: (5) The employer is revoked, ordered to close, revoke or the employer decided to dissolve in advance.

Although Lanmou is a female employee in the third phase, the statutory situation of the third phase of female employees cannot be terminated, which is limited to the situation of the contract expires (to the disappearance of the third phase). In addition, the law will no longer be protected by protectionIt’s right.Therefore, the company decides to dissolve in advance, and of course, it can terminate the labor contract with the employees according to law, and the third -phase female employee is no exception.Therefore, Lan is required to restore the labor relationship.

□ Special Tips

The firing protection of female employees in the third phase (the dismissal here is a big concept, including lifting and termination), limited to three cases: 1. The unit cannot be misaligned (Article 40);(Article 41); 3. The termination of the contract cannot be terminated (Article 45). In addition, the female employees in the third phase of the third phase will not be protected.(The author is a lawyer and part -time arbitrator of Guangdong Huatu Law Firm)

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