Dismissed while pregnant and billed RMB 130,000: how pregnant employees can protect their rights
A woman at a Qingdao electronics company was moved from quality inspection to a workshop handling chemical adhesives after she asked not to work overtime while pregnant, was later accused of leaving her post without approval, and was dismissed with a demand for RMB 131,652 in losses. The arbitration commission found the dismissal unlawful while the first-instance court upheld it, and the appeal is unresolved. The article explains the statutory protection for pregnant employees and the five issues the courts must decide.
Background
A woman employee in Shandong, Ms Li, was dismissed while pregnant and then presented with a claim for RMB 130,000, a story that has set off a lively discussion online. According to China.com, the company concerned is Qingdao Qilin Electronics Co. Ltd. Ms Li joined in November 2013 and worked there for nearly five years. In August 2018 she became pregnant and applied not to work overtime, which was refused; she was then required by the company to sign an agreement to work overtime voluntarily.
On 10 September the company notified her of a transfer, moving her from quality inspection to film application in a workshop where chemical adhesives are handled. She did not agree to the transfer. The company then stopped assigning her any actual work, barred her from the office, refused to let her eat lunch on the premises, and issued her with a warning notice for passive slowdown. By 18 September she could not even get through the factory gate.
On 28 September she received a notice of termination from Qingdao Qilin Electronics, stating that from 19 September 2018 she had left her post without permission and without completing the company's written leave approval procedure, and that the company had decided to terminate the employment contract with effect from 28 September 2018. The notice added that her unexplained slowdown and absence from work had seriously affected the company's normal operations, disrupted production order and caused it substantial economic loss, that she was required to pay the company RMB 131,652, and that she should attend at the company to confirm and pay by 11 October 2018.
On 8 November 2018 the Pingdu Labor and Personnel Dispute Arbitration Commission issued an award holding that the company's unilateral decision to terminate Ms Li's employment contract violated the Labor Contract Law. On 5 March 2019, however, the Pingdu People's Court gave judgment holding that the termination complied with the law.
The appeal was heard in open court in July this year. After the hearing the panel presided over mediation, which both sides refused. The matter remains unresolved, and to date Ms Li has not paid the RMB 130,000.
Pregnant employees in the "three periods" are protected against termination, so when can they still be dismissed?
Article 42 of the Labor Contract Law, headed "circumstances in which an employer may not terminate an employment contract", provides that where a female employee is pregnant, in confinement or breastfeeding, the employer may not terminate the employment contract under Articles 40 or 41 of the Law. Articles 40 and 41 deal respectively with dismissal without fault and economic redundancies.
Article 39 of the Labor Contract Law, headed "unilateral termination by the employer (dismissal for fault)", provides that an employer may terminate an employment contract where an employee (1) is proved not to meet the recruitment conditions during the probation period; (2) seriously breaches the employer's internal rules; (3) commits serious dereliction of duty or graft, causing substantial loss to the employer; (4) simultaneously establishes an employment relationship with another employer, seriously affecting the performance of tasks for the employer, or refuses to correct the position after the employer raises it; (5) causes the employment contract to be invalid by virtue of Article 26(1)(1) of the Law; or (6) is held criminally liable.
In other words, a pregnant employee may be dismissed only where one of the circumstances in Article 39 is present. Qingdao Qilin Electronics issued the dismissal notice on the basis that Ms Li had committed serious dereliction of duty causing substantial loss to the employer. The case therefore turns on five disputed issues.
1. Whether the temporary transfer was reasonable;
2. Whether the dismissal procedure was compliant;
3. Whether there was any absence from work during the pregnancy;
4. Whether the working environment was harmful to a pregnant woman;
5. Whether the claim for RMB 130,000 in the dismissal notice has any substantive effect.
How can pregnant professional women protect their lawful rights?
The CCTV Social and Legal Affairs programme offered the following suggestions to help pregnant employees protect their lawful rights more effectively at work.
1. Submit the pregnancy diagnosis certificate promptly and keep evidence of the pregnancy.
2. Follow the proper leave procedure for antenatal examinations and keep evidence that leave was granted.
3. If health does not permit work, submit the doctor's diagnosis and certificate of sick leave, and keep evidence of the sick leave.
4. Return to work promptly after sick leave or antenatal examinations, and keep evidence that no absence occurred.
5. Clock in on time and check the attendance records, keeping a record of normal attendance.
In short, an employee should be evidence-minded, and communication with the company should where possible be in writing or in text form, so that the burden of proof is easier to discharge if a dispute arises.
Pregnancy is not a talisman, however: breach of rules or discipline at work will still lead to dismissal. Pregnant employees should therefore also note the following.
1. Where taking sick leave, understand the rules on the medical treatment period, return to work promptly, and avoid any absence from work.
2. Observe the law and discipline and follow the company's rules strictly, avoiding any breach.
3. Keep a proper attitude, work actively rather than slowing down, take responsibility for the work, and avoid any dereliction that causes substantial loss to the company.