Recently, Ms. Wang (pseudonym), an employee in Ningbo, Zhejiang Province, was fired for failing to report her work in the WeChat work group in time after work. On July 24, 2018, Ms. Wang went to the Ningbo Federation of Trade Unions Employee Service Center for help. The service center hired lawyer Liu Fangming from Zhejiang Boning Law Firm to provide her with legal assistance. With the help of lawyer Liu, Ms. Wang initiated arbitration with the Labor Dispute Arbitration Committee, demanding that the unit pay compensation for illegally rescinding the labor contract, and double the salary for failing to sign a written labor contract. In the end, the unit reached a mediation with Ms. Wang, and with the help of lawyer Liu, Ms. Wang finally got 18,000 yuan in compensation. And this day is only 15 days away from Miss Wang's dismissal. Once the incident was reported by the People's Daily Online, Ningbo Daily and other media, it aroused heated discussions.

Case review

In July 2017, Ms. Wang joined a beverage store in Ningbo as the store manager. At 22:23 on July 2, 2018, the person in charge of Ms. Wang's unit requested to publish the monthly turnover within 10 minutes on the work WeChat group, and she would be dismissed if she did not. Ms. Wang fell asleep early because of her pregnancy and did not reply in time. 10 minutes later, the person in charge of the unit notified Ms. Wang on the WeChat work group that she had been dismissed. When Ms. Wang went to work in the store on the second day, the unit informed her that she had been dismissed and refused to pay Ms. Wang the salary of the previous month.

Case Analysis

There are two violations of the employer in this case:

01. Failure to sign a written labor contract with Wang in time

02. During Wang's pregnancy, he illegally terminated the labor contract on the grounds that Tian did not report his work in time.

In response to the first question, Wang has been in the unit for one year, and the employer has never intended to sign a written labor contract with Wang. However, according to Wang's work permit and work WeChat chat records, it can be proved that Wang and Wang have The unit has a de facto labor relationship and has not signed a written labor contract for one year. Wang has the right to ask the unit to pay double wages for 11 months.

In response to the second question, the law provides special protection for female employees during pregnancy, childbirth and breastfeeding. Article 42 of the Labor Contract Law and Article 9 of the Labor Protection Measures for Female Employees of Zhejiang Province are related to Regulation. In this case, the employer actually fabricated reasons at will to dismiss Wang who was pregnant after learning that Wang was pregnant. This behavior of the employer is an illegal termination of the labor contract and should be paid to Wang at twice the economic compensation rate. compensation.

Legal Tips

The State Council has issued special provisions for the "three-phase" protection of female employees

The fifth

Employers shall not reduce the wages, dismiss, terminate labor or employment contracts of female employees due to pregnancy, childbirth, or breastfeeding.

Article 6

If a female employee cannot adapt to the original labor during pregnancy, the employer shall, according to the certificate of the medical institution, reduce the amount of labor or arrange other labor that can be adapted.

For female employees who are more than 7 months pregnant, the employer shall not extend the working hours or arrange night shift work, and shall arrange certain rest periods during the working hours.

Pregnant female employees shall conduct prenatal examinations during working hours, and the required time shall be included in working hours.

Article 7

Female employees are entitled to 98 days of maternity leave, including 15 days of leave before giving birth; 15 days of maternity leave for dystocia; 15 days of maternity leave for each additional child born to multiple births. (Reporter's Note: In 2017, Zhejiang Province has already made provisions on the extension of maternity leave. On the basis of the original 98 days of maternity leave, an additional 30 days will be added, for a total of 128 days.)

Female employees who have miscarriage within 4 months of pregnancy are entitled to 15 days of maternity leave; those who have miscarriage after 4 months of pregnancy are entitled to 42 days of maternity leave.

eighth

The maternity allowance for female employees during maternity leave, for those who have participated in maternity insurance, shall be paid from the maternity insurance fund according to the average monthly salary of the employees in the previous year; pay.

The medical expenses for childbirth or miscarriage of female employees shall be paid by the maternity insurance fund for those who have participated in maternity insurance according to the items and standards stipulated in maternity insurance; for those who have not participated in maternity insurance, the employer shall pay.

Article 9

Employers shall not extend working hours or arrange night shift work for female employees who are breastfeeding babies under the age of one.

Employers shall arrange 1 hour of breastfeeding time for breastfeeding female employees within the working hours of each day; if female employees give birth to multiple births, each additional baby to breastfeed will increase by 1 hour of breastfeeding time per day.

Introduction to lawyers

Liu Fangming is a full-time lawyer. Since the beginning of his career, he has successfully represented many civil and commercial legal disputes and labor disputes, including civil loan contract disputes, financial loan contract disputes, labor arbitration, creditor rescission disputes, sales contract disputes, trademark infringement disputes, etc.; he is also good at non-litigation law Business affairs, corporate bankruptcy and liquidation, etc., and participated in the successful bankruptcy and reorganization of many famous companies.