On August 3, 2020, Ms. Li, who works in a community of the Hezhuang Sub-district Office in Xiaoshan District, submitted an application for maternity leave to the unit because she was pregnant with “three children”. One say”. After Ms. Li put down the request for leave, she went home and waited for delivery.

On August 6, 2020, Ms. Li’s third child was born. Three months after childbirth, Ms. Li returned to work at the unit, but was told that “it will not be used anymore and will go through the formalities directly after a while.”

On December 16, 2020, Ms. Li received a “Certificate of Termination of Labor Contract”, stating: “Due to violation of Article 44 of the “Regulations on Population and Family Planning of Zhejiang Province” and the “Administration and Implementation of Full-time Community Workers in Hangzhou” According to Article 25, Item 6 of the Measures, Ms. Li will withdraw from the team of full-time community workers on December 15, 2020.”

Ms. Li believes that the employer’s dissolution of the labor relationship during her breastfeeding period is illegal, and she has applied to the Labor Arbitration Commission for a ruling on the payment of compensation and a replacement wage of more than 140,000 yuan by the original employer.

In this regard, the Hezhuang Sub-district Office stated that Ms. Li is a full-time community worker engaged in family planning related work. Under this circumstance, Ms. Li violated the family planning regulations to give birth to a third child, which caused an extremely serious impact on the sub-district office. .

On March 9, 2021, the Labor Arbitration Commission ruled that, in accordance with the relevant provisions of the “Zhejiang Province Population and Family Planning Regulations”, “The applicant (Ms. Li) did violate the relevant provisions of family planning, and the respondent (unit) ) The applicant may not be granted relevant maternity leave treatment”. According to the arbitration opinion, Ms. Li’s request for payment of wages and annual bonuses from maternity leave to the date of termination of the labor relationship is not recognized, and the request for compensation for her application is not recognized.
Ms. Li is not satisfied with the arbitration result, and she has filed a lawsuit with the Xiaoshan District People’s Court.

zhiwo

By zhiwo

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helpmekim
6 months ago

That’s right to dismiss. I signed a “consensus”, and the consequences must be borne by myself. He just didn’t sign, and he won long ago, because in January 2021, the country has clearly banned the excessive punishment of superbirth in various places, and the third child will no longer be punished. This woman was previously engaged in family planning work. Others were punished for superbirth, and she was also the enforcer. Now I caught the last train and was punished (it would be fine one month later), which is reasonable.

heloword
6 months ago

The specific answer to the legal analysis is very detailed and professional. I have read this question several times, but what I want to answer is the question of integrity and contract spirit. No matter what industry we are engaged in, what position we hold, honesty is the basic, and we must abide by professional ethics. From civil law, we also have the principle of honesty and credibility. In terms of the spirit of the contract, this is not a contract or clause unilaterally requested or forced by a certain party or a strong party. On the contrary, it is the result of mutual commitment and consensus by all parties on a voluntary and equal basis. From this incident, both the unit and the workers were carried out under the premise of consensus, there was no coercion, coercion, etc., and there was enough time to think, consult, and consider before writing the words, and finally why Sign and confirm, this is the recognition and compliance of the content of the agreement. Unless the woman in the case can prove that the agreement was illegally signed, it is better to abide by the agreement in good faith. Finally, for such cases where the facts are clear and self-confirmed, the litigation rights protection is an abuse of litigation resources.

helpyme
6 months ago

Judging from the current certificate, it is not expulsion, but the termination of the labor contract through negotiation. The “Certificate” said it was cancelled by consensus, and she also signed it, explaining that she agreed with the statement on the certificate, and now that she is going to go to court, she has to produce evidence that she has not yet negotiated and agreed. This is difficult to do. Arrived. Even if she proves that she did not agree, she can only overturn the “consensus” statement of the certificate, and cannot overturn the reason for the termination of the contract-the employer has terminated the labor contract with you because of your absenteeism. Whether you agree or not, You cannot deny the fact of absenteeism. The third child is illegal (the quality of this ghost family planning policy is not discussed here), the unit does not give leave, she takes leave without authorization, it is absent from work, it is said that the unit can terminate the labor contract without her consent, this is the result of her breach of contract . The unit issued this certificate, one is that she doesn’t want to be a villain who is expelled, and the other is to take care of her face. Don’t put punishment on her file, so as not to affect her to find another job. However, Ms. Li didn’t appreciate it. If I were the leader of this unit, if I lost the lawsuit, I would simply issue another disciplinary decision and expel the employee who had been absent from work for several months. What can you do with Ms. Li? Even though I am absent from work, I still feel right and confident. People nowadays have gone to the tip of a horn to defend their rights and have no sense of law at all.

sina156
6 months ago

Before answering this question, we need to think about whether it is necessary to retain the family planning regulations under current conditions. With the fertility rate of our country’s population decreasing year by year, what exactly is the role of family planning? In addition, if family planning is cancelled, then there will be a series of labor issues. How should women’s maternity leave be arranged? If the unit has gender discrimination, how should it be resolved? How to ensure the balance between work and women’s work, etc.! For example, tax reduction and exemption of units, or direct government subsidies for part of the wages during maternity leave for two and three children, etc. Let’s talk about the situation of this issue. Many serious people may have seen that, regardless of whether the party was deceived or what the situation, in a word, the “Certificate of Dissolution of the Labor Contract” has been signed. The most important thing is to terminate the labor contract after the two parties have reached an agreement. This sentence means that you have negotiated with the employer, and you have also agreed with the employer’s related compensation and other issues (or there may not be any). Now you feel that you are at a disadvantage, and you want to find someone else to have a theory. This is equivalent to a divorce agreement between you and your husband, and then go to the Civil Affairs Bureau to apply for a divorce certificate. But half a year later, you find that your husband gave you not enough money. Now you want to go back on the divorce agreement and redistribute the property. (For a chestnut) This is of a nature. This “Certificate of Dissolution of Labor Contract” is equivalent to the divorce certificate and has the same legal effect. No matter what the circumstances are, you have already proved your agreement. Of course, if there is a threat or coercion, you can collect evidence and have a chance to reverse the case. But there should be no threat or coercion in your situation. Therefore, there is no chance of winning the appeal.

yahoo898
6 months ago

1. At the end of the certificate, it was written that the labor contract was terminated by consensus. Therefore, the labor contract was terminated in accordance with Article 36 of the Labor Contract Law, and the employee also signed it (as an adult, he is responsible for the words signed by himself. Unless it can be proved that there are invalid situations such as fraud, coercion, and taking advantage of others), therefore, the legality is cancelled. 2. Since the termination is legal, there is no issue of compensation for illegal termination of the labor contract. Therefore, its request for compensation will not be supported. 3. It is possible to request economic compensation. According to Article 46 of the Labor Contract Law, if the employer proposes to dissolve it, and if there is a consensus through consultation, the employer needs to pay economic compensation. At this time, it is necessary to prove that it is the employer’s motion. The certification does not indicate which party is the motion, and the burden of proof rests with the employer. When the worker insists that it is the employer’s motion, the employer cannot prove that it is the worker’s motion. At the time, the worker’s request will be paid. Of course, the specific operation is better to ask professionals to operate.

leexin
6 months ago

Judging from the information that has been disclosed so far, although this woman works in the community, her identity should not be a civil servant or a member of an institution, but a contract worker, and the provisions of the Labor Contract Law apply. The reason for her expulsion was not that she had three children in violation of the family planning regulations, but that she violated the rules and regulations of the community. Maybe you have to say, isn’t expulsion for having three children the same thing as expulsion for violating the community work system? Actually, it’s really different. If a woman is a staff member of a state agency or enterprise, she can be expelled from public office directly based on violation of family planning regulations. However, she is a contract worker, and having three children only violates the provisions of the Population and Family Planning Law. The corresponding legal responsibility is the collection of social support fees, which is an administrative penalty. According to the “Labor Contract Law”, female employees are Breastfeeding cannot be expelled. This is the basic rights of women, otherwise the employer will violate the law. However, it is not absolutely impossible for women to terminate the labor contract during the breastfeeding period. For example, if the two parties reach an agreement or seriously violate the rules and regulations of the employer, the labor contract can be terminated. Therefore, although the woman was expelled in this case, although on the surface it was because she gave birth to three children, her identity was different and the basis was different, which also affected the outcome of the woman’s subsequent prosecution. At present, if the community can prove that the woman has seriously violated the rules and regulations, then the woman will most likely lose the lawsuit. Of course, there is another problem in this case, and that is the treatment of women giving birth to three children. If you meet the conditions for having three children, you will naturally enjoy maternity leave; but if you are over-birth, you can enjoy maternity insurance, and you can’t enjoy the benefits of maternity leave and lactation leave, which can only be considered as personal leave. In reality, very few useful units can accept such a long vacation. Only a few years ago, the Population and Family Planning Law was revised, and second births were fully liberalized and it is legal to give birth to second births. However, three births are generally superbirths, and social support is required. However, in the current social environment where fertility is advocated and more and more people are unwilling to have children, the issue of reproductive treatment for third children and above needs to be re-examined. .

greatword
6 months ago

First, according to Article 18 of the “Population and Family Planning Law”: The state encourages a couple to have two children. It shows that having three children is obviously a violation of the family planning law. Second, this worker, who previously worked in the community was responsible for family planning, it is impossible for her to understand that having three children is not in compliance with the law. Obviously this is the situation of “knowing the law and breaking the law”. Third, their certificate of termination of the labor contract states that “the labor contract shall be terminated by mutual agreement”, and both parties have signed and sealed, so the termination is legal, not a so-called expulsion. Of course, there are also many workers in life because they are in a disadvantaged position, and because of practical problems, they are worried that they will not be able to get the corresponding salary before signing. However, the situation of this worker is obviously different. She herself violated the family planning regulations first, and the company’s request to terminate the labor contract is also legal. If this worker is required by the company to terminate the labor contract when he has one child or two children as stipulated in the family planning, he can naturally sue the company! To defend their rights. Superbirth is not right, but if you deliberately use this to stir up the sensitive nerves of the people who eat melon just because you are a third-term employee (pregnancy, childbirth, breastfeeding), it will only lead to gender discrimination against women in the workplace More entrenched.

loveyou
6 months ago

Let me start with the conclusion that the probability of Ms. Li winning is very, very small. Because Ms. Li did not take any reason, there was nothing wrong with the street office’s approach, and Ms. Li made a fatal mistake. (Personal opinion) The fatal error “Certificate of Dissolution of Labor Contract” finally wrote “The labor contract shall be terminated by mutual agreement”, that is to say, it is not that the sub-district office fired Ms. Li, but both parties agreed to Ms. Li’s resignation. (At this point, Ms. Li should have been tricked. She doesn’t understand the meaning of the signature. In fact, the street office is responsible, and there is no need to use this kind of indiscriminate means.) If it is a street office Unilaterally voluntarily terminates the labor contract with Ms. Li. The Arbitration Commission (court) will review whether the reasons for the termination of the labor contract by the neighborhood office comply with the provisions of the Labor Contract Law. If not, the sub-district office’s behavior is illegal termination of the labor contract, and compensation must be paid, that is, two additional months of compensation for one year of work. If the working life is long enough, the amount of compensation is still quite large. Second, this Ms. Li should have violated the relevant regulations of family planning, Ms. Li is not reasonable. Even if the sub-district office voluntarily terminates the labor relationship, it is consistent with the “Labor Contract Law”, and Ms. Li has no right to request the sub-district office to pay compensation. There is also a similar case in Zhanjiang, Guangdong. The case has gone through arbitration, first instance and second instance. Case number: (2018) Yue 08 Min Zhong No. 2677. Ms. Xie’s violation of laws and over-birth-income behaviors not only caused a negative impact on Lianjiang Maternity and Child Health Hospital, but also seriously violated the contractual agreement that “employees should strictly abide by national and local laws and regulations”. There are factual and legal grounds for the termination of the labor relationship between the two parties in the Lianjiang Maternity and Child Health Hospital. The Lianjiang Maternity and Child Health Hospital does not need to pay compensation and loss of wages to Xie Guangni. Therefore, this court does not support the appeal of Ms. Xie regarding the payment of compensation for illegal termination of labor relations and compensation for wage losses by the Lianjiang Maternal and Child Health Hospital. A similar case in Chengdu, case number: (2020) Chuan 0112 Minchu 1860, implementing family planning is my country’s basic national policy. Citizens have the right to have children and have the obligation to implement family planning in accordance with the law. Both spouses have common responsibilities in the implementation of family planning. The plaintiff had already given birth to two daughters and had another child without application approval under the condition that they were not eligible for continued childbirth. His behavior violated the mandatory provisions of the national family planning laws and local regulations. Therefore, the plaintiff used the defendant’s illegal birth of a third child and found that it had a factual and legal basis for violating the mandatory provisions of national laws, administrative regulations, and local regulations. According to the relevant provisions of the labor discipline management system and the management methods for handling violations of employees, the plaintiff believed that the defendant’s behavior was a serious violation of the rules and regulations of the employer and complied with its provisions. A similar case in Foshan, case number: (2018) Yue 06 Min Zhong 5751, according to a reply from the Jiangshan Municipal Health and Family Planning Bureau of Zhejiang Province, confirming that after giving birth to two daughters, the Liu Hailian and his wife are no longer in compliance with the relevant policies of Zhejiang Province for childbirth. In summary, because Liu Hailian’s violation of discipline and dereliction of duty violated the company’s rules and regulations, labor discipline and the Family Planning Contract, China Mobile Foshan Branch’s termination of the labor relationship between the two parties is based on the law and does not constitute a violation of the termination of the labor relationship. According to Article 39 and Article 46 of the Labor Contract Law of the People’s Republic of China, China Mobile Foshan Branch does not need to pay economic compensation to Liu Hailian. In summary, Ms. Li is not reasonable in this matter, and has made a fatal mistake and has no chance of winning. I have done some labor dispute cases. I feel that for workers, resignation is a battle. You must be careful and pay attention to everything. If you are not careful, if you sign something that should not be signed, the compensation will be lost. The rights and interests of the people cannot be protected. However, in Ms. Li’s case, it was indeed Ms. Li who was wrong, and she had to be hard on her own.

strongman
6 months ago

In the past two years, many people have called the trend of “fewer births”, and young people have become less and less wanting to have children. So when I first saw this news, my first reaction was “There are still families that can give birth to three children.” Then I saw that it was a family planning program, and there was nothing to say. It was a labor conflict, so I could rectify it as it should be. But when I looked through the comments, I saw that the most people mentioned the issue of childbirth. Not wanting to have a baby, some people attribute it to real problems. In my opinion, the actual problem is only a superficial factor. Behind it is that the pressure of having a child on marriage is too great. Some people do not want to give birth to a child or delay their birth because it affects the quality of life. That’s what people often say, it’s hard to raise oneself, but also raise a child? At a deeper level, the birth of the child exposes the immature side of the parents. Some couples feel that childbirth is a necessary stage, so they are born, but they have to learn parenting knowledge from scratch. At this time, some men have their own jobs outside, and their minds cannot be allocated to the children. They still feel that , I was raised by my mother when I was young, so I handed over all the childcare to my wife. Because mothers and children have a natural emotional connection, they will be more responsible to the children, but the lack of a husband’s identity will put a lot of pressure on the wife. If this mother still has her own job, the pressure is even harder to imagine. Therefore, many marital problems began to intensively erupt from parenting. There is a concept of “triangular relationship” in psychology, which means that the relationship between two people is unstable. When the two people have conflicts, the third person can be pulled in, and the relationship can reach a new kind of stability. The child has an emotional effect on the husband and wife. The same is true, but in reality couples are not doing well, what should we do? Regarding parent-child relationship VS husband and wife relationship, some wives do not make a choice and pay too much attention to their children and ignore their husbands. My suggestion is that the wife can wake up her husband’s child-raising function and let her husband participate in childcare. If he doesn’t understand, tell him that if he doesn’t do well, give him time and space, and the wife should avoid all-inclusive arrangements at this time. Later, the husband will not feel the sense of existence, and the marriage will also have problems. What can affect the relationship between husband and wife is not the birth of the child, but the problem of the couple’s own way of getting along, which is only exposed in the parenting. Parents are also the children’s native families, and they are given a platform. If this platform is built well, it will be the daily life that you and him must work together.

stockin
6 months ago

1. Is it illegal to have three children? What kind of punishment will you receive? Illegal. According to the provisions of Article 18 of the Family Planning Law, “the state encourages a couple to have two children.” Although it is “advocate” here, it is actually “mandatory” in disguise, because if you violate this provision, you will be punished accordingly. What are the specific penalties? There are two main points: first, pay the money; second, punish it. Let me talk about paying money first. According to Article 41 of the Family Planning Law, “Citizens who do not comply with the provisions of Article 18 of this Law who give birth to children shall pay social maintenance fees in accordance with the law.” Note that the “social maintenance fee” here is not an administrative penalty, but an administrative levy. Administrative punishment is a passive sanction for violation of administrative norms, while administrative expropriation is a neutral act of forcibly collecting a certain amount of money and in-kind from the administrative counterpart according to the needs of the public interest. It has no punitive nature. Let’s talk about punishment. For different groups of people, the sanctions are also different: the first category is “state personnel” (referring to all state agencies, state-owned enterprises, institutions and other personnel engaged in public service in accordance with the law), in accordance with the provisions of Article 42 of the “Family Planning Law” If the person who pays social maintenance is a state employee, he shall be given administrative sanctions in accordance with the law; the other category is a person other than a state employee, which shall be imposed by his unit or organization in accordance with Article 42 of the Family Planning Law Disciplinary action. 2. Can the unit fire a breastfeeding female employee? Discuss the scoring situation. On the one hand, the “three phases” (pregnancy, childbirth and lactation) of female employees will be specially protected by law. According to Article 42 of the “Labor Contract Law”, “If a female employee is pregnant, childbirth, or breastfeeding, the employer shall not terminate the labor contract in accordance with the provisions of Article 40 and Article 41.” Article 5 of the Special Provisions also clearly stipulates that “Employers shall not lower their wages, dismiss them, terminate their labor or employment contracts with female employees due to pregnancy, childbirth, or breastfeeding.” On the other hand, if the female employees are in the “third term” An employee who commits a crime or serious fault in special circumstances may be expelled in accordance with the law. According to Article 39 of the “Labor Contract Law,” the employer has the right to expel even if it is a “third-term” female employee in the following situations: (1) Being investigated for criminal responsibility in accordance with the law; (2) By fraud, coercion or taking advantage of others (3) Serious negligence or malpractice, causing serious damage to the employer; (4) Serious violation of the employer’s clear and publicized company rules, procedures, and methods, and meeting the expulsion requirements (5) Establishing labor relations with other units at the same time, which seriously affects the normal work of the unit and refuses to make corrections; (6) It is proved that they do not meet the employment conditions during the probation period. 3. Can I take maternity leave for a super child? can. It’s true that having a third childbirth violates the national childbirth policy, but my country’s laws and regulations do not stipulate that female employees who are overborn are not allowed to take maternity leave, and maternity leave is a basic guarantee for women’s rights and interests. It cannot be deprived. Although over-birth is entitled to take maternity leave, it does not enjoy the wages and maternity insurance benefits during maternity leave. According to the “Zhejiang Population and Family Planning Regulations”, “If you do not meet the statutory conditions and have more births, in addition to paying social support in accordance with the regulations, no wages will be paid during maternity leave. All expenses such as pregnancy and childbirth will be borne by yourself, and other childbirth benefits will be cancelled. “Four. Is superborn a valid reason for expulsion? It’s not. Dismissal of employees must be strictly in accordance with the “Labor Law” and “Labor Contract Law”. It is illegal for employers to dismiss employees without a legal basis. Returning to the case in the introduction, the expulsion of the employer is based on Article 44 of the “Zhejiang Province Population and Family Planning Regulations” and Article 25, Item 6 of the “Administrative Measures for Full-time Community Workers in Hangzhou”. As a matter of fact, these two regulations are not at all a legitimate reason for employers to expel female employees who are breastfeeding. Let me talk about the first basis of the employer. Article 44 of the “Zhejiang Population and Family Planning Regulations” stipulates: “For those who do not meet the statutory conditions and have more births, in addition to paying social support in accordance with these regulations, no wages will be paid during maternity leave, pregnancy, childbirth and other expenses will be paid by themselves, and other births will be cancelled. Welfare treatment, the sanctions of both men and women are degraded or above, until dismissal from public office.” Note that the premise of “dismissal from public office” is to hold public office. The full name of a public office is a national public official, which refers to the staff of state organs at all levels, and is the exercise of state power. The main body performing state official duties. According to Article 56 of the Civil Servants Law, “Sanctions are divided into: warning, demerit, demerit, demotion, dismissal, and expulsion.” It can be seen that “expulsion from public office” is the highest administrative sanction for civil servants. A contracted female employee working in the community, how could it be said that she was “expelled from public office”. Article 44 of the “Regulations” stipulates that the sanctions of both men and women are degraded or above until they are dismissed from public office. They are sanctions for public officials and cannot be used as a legitimate reason for terminating the labor contract of “contract workers.” Let’s talk about the second basis of the employer. The Implementation Measures for the Management of Full-time Community Workers in Hangzhou was issued by the Hangzhou Harmonious Community Construction Leading Group on May 15, 2019. Article 25 stipulates that community workers in 6 situations should withdraw from the team of full-time community workers. Item 6 is stated as “there is a violation of other laws and regulations or document policies.” Note that item 6 is a “recovery clause”. The interpretation of the cover clause must adhere to the “prudential principle”, and the interpretation should not be expanded at will. The “violation of other laws or document policies” here should meet the requirements of laws and regulations. Only when the labor contract is terminated can the labor contract be terminated based on this clause. Moreover, the “Implementation Measures” also does not clearly stipulate that violation of the family planning policy is a legitimate reason for the employer to terminate the labor contract, so it is not possible to expel employees based on this provision. To sum up, the two “basis” for the employer to terminate the labor contract are untenable, and the employer to terminate the employee’s labor contract without a legal basis is an illegal act, and it should pay the employee economic compensation and compensation in accordance with the law. gold.

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