Pregnant female worker probation was dismissed, procuratorate protest, retrial results too unexpected

2022-07-17 0 By

Xiaobian according to: this case is simple, but has experienced arbitration, first instance, second instance, procuratorate protest, high court arraignment, the accident is, the judgment results of all levels of judgment organs are different, the retrial conclusion is unexpected.Zhou Zhimu is an employee of a company in Shanghai. He joined the company on August 9, 2016 with a probation period of two months.On September 30, 2016, the company to terminate the labor contract probation period told book, set forth the lift reason is: the probationary period do not accord with employ condition, mainly for the communication ability, financial handling errors, internal management reports issued by not timely, accurate, not according to the company work process work, after the induction of accounting documents do not finishing, binding, and filing work.On October 20, 2016, Zhou Applied for arbitration, demanding that the labor relationship between the two parties be restored, and zhou should be paid 7,500 YUAN per month from October 1, 2016 to the date of labor relationship restoration, which was not supported by the arbitration Committee.Zhou refused to accept the ruling and appealed to the court.The judgment of the first instance: The labor relationship shall be resumed, and the company shall pay Zhou Zhiluo’s salary from October 1, 2016 to the effective date of the judgment according to the salary standard of 6,000 yuan per month. It was found in the first instance that Zhou Zhiluo was pregnant when the company terminated the labor contract, and she was still pregnant in the first instance stage.In the trial of the first instance, the company provided the following evidence: 1. Screen shot printouts of recruitment and resignation information inquiry proved that Zhou Zhimu had recruitment records for more than ten times since 2008, and the materials zhou Zhimu provided were false; 2.2. E-mail sent by Zhou To the general manager of the company, proving that Zhou directly sent the E-mail to the general manager of the company in order to deal with the work, without financial records review;3. Screenshots of vouchers and computer print-outs of supermarket payment entry vouchers prove that Zhou Zhimu did not make vouchers according to requirements, filled in wrong amount, did not fill in the invoice number, etc., and is not competent for work.Zhou Jiweaku has objections to the authenticity of evidence 1 and 3 provided by the company. Based on the fact that evidence 1 and 3 provided by the company are computer printed copies, which do not have evidence form requirements, the court of first instance does not confirm.Zhou Jiweaku has no objection to the authenticity of evidence 2 provided by the company, but has objection to the purpose of proof, indicating that monthly statements should be directly sent to the general manager of the company.The judgment of the first instance is as follows: 1. Restore the labor relationship between Zhou Zhiduo and the company;Ii. The company shall pay wages of 6,000 YUAN per month from October 1, 2016 to the effective date of the judgment within 5 days after the judgment takes effect.The company appealed against it.The court of second instance held that the first instance determined that the company had terminated the labor contract illegally based on relevant evidence, and that it was not improper.However, if the labor contract can no longer be performed according to Article 48 of the Labor Contract Law of the People’s Republic of China, the employing unit shall pay compensation in accordance with article 87 of this Law.During the second instance of this case, the employment record registration form and other evidences provided by the company can prove that the company recruited a new employee as a current accountant of the Financial Department on October 11, 2016.In addition, workers should be honest and trustworthy.In this case, Feike Automation Equipment (Shanghai) Co., Ltd. issued a separation certificate recording that he worked as a financial accountant in the financial section of the General Affairs Department of the company from October 24, 2014 to March 20, 2015.However, Zhou Zhimu filled in the basic information registration form of employees when he joined the company in August 2016, but recorded “2014.2-2016.1 Feixx Automation Equipment Shanghai Co., LTD. General ledger accounting”, no matter the time of entry, departure time and specific positions are significantly different, Zhou Zhimu explained in the second trial that it is memory bias, difficult to accept.Combined with the above factors, the particularity of the financial department and the fact that there is only one position in this position, the labor contract can no longer be performed, and the judgment is revised.The labor relationship between the two parties shall be terminated on the day when the notice of Termination of labor Contract during probation period is signed and received.The company expressed voluntary one-time payment of 36,000 yuan weekly, which should be performed.To sum up, the judgment of the second instance is as follows: 1.Ii. Reject Zhou zhicheng’s request to resume the labor relationship between the two parties, and require the company to pay the salary of 6,000 YUAN per month starting from October 1, 2016;3. The company shall make a lump sum payment of RMB 36,000 within 10 days from the effective date of the judgment.Zhou refused to accept the verdict of the second instance and applied to the procuratorial organ for supervision.Procuratorate protest: final judgment that the company illegal discharge the labor contract, but is not supports the filed for labor relations, there to Shanghai municipal people’s procuratorate to the Shanghai high court on February 20, 2019 interests, for the following reasons: our country implements special protection for female workers, weeks already pregnant check weak to company work.The company cancelled zhou’s labor contract with him on the grounds that “the probation period does not meet the employment conditions”. For this, the company neither provided relevant evidence that Zhou does not meet the employment conditions, nor provided evidence that Zhou is incompetent.Therefore, the final judgment confirmed that the company had illegally terminated the labor contract, but did not support Zhou zhimu’s claim for resuming the labor relationship, which has no legal basis.The company argues that the most basic requirement and entry condition for employees is honesty and trustworthiness. However, Zhou Zhimu fabricated his own experience in performing his duties when he entered the company and acted dishonestly. Therefore, it is impossible for the two parties to form a harmonious and stable labor relationship.The complainant has filed four lawsuits with another company by the same means. Zhou Jiemu concealed the litigation with other companies when applying for the job and held reservations on the final judgment that he had illegally terminated the labor contract, but recognized the judgment and demanded to maintain the original judgment.The Shanghai High Court made a ruling on March 18, 2019, bringing the case to trial, and the Shanghai People’s Procuratorate appointed prosecutors to appear in court.The High Court ruled:Weeks check weak hide into the job experience, contrary to the basic professional ethics, remove company legal, but given the company voluntary compensation 36000, just verdict according to the compensation of 36000 yuan the court found that other weak weeks ending on October 27, 2011 entry in a certain machinery co., LTD., Shanghai ze in May 2013, weeks check weak in June 4, 2013, fertility and a woman,Since then, there have been 4 lawsuits on labor contract termination, maternity allowance and other disputes between the two parties in October, November, December and January 2014.After the court, Zhou Zhilu submitted to the court one labor contract with Shanghai Huamex Pharmaceutical Machinery Co., LTD. (Contract period: November 1, 2018 to October 31, 2021) and Shanghai Chengmou Agricultural Development Co., LTD. (Contract period: February 25, 2019 to February 24, 2022).Zhou Zhiweak trial said it is now working in Shanghai cheng some agricultural development Co., LTD.The court believes that the focus of this case lies in whether the company has illegally terminated the labor contract and whether Zhou Zhiliu can resume the labor relationship.Whether the company dissolves the labor contract illegally.The court believes that the principle of good faith is not only a code of civic ethics, but also a basic professional ethics of employees.In this case, Zhou Zhimu filled in the registration form of basic information of employees and promised that the content of all information filled in is true and allowed the company to check. If there is any false information, zhou is willing to bear all the responsibilities arising therefrom.After checking, Zhou Zhimu three section of entry experience in addition to the last paragraph is true, the other two paragraphs of experience are not true.From February 2009 to May 2013, I worked as a general ledger accountant in a biological products Co., LTD in Shanghai.In fact, Zhou Zhisuo on October 27, 2011 and ze a company signed a 2-year labor contract, and in October 2013, November, December, Zhou Zhisuo sued ze a company to the court, asking ze a company to compensate for its wage loss and maternity allowance.Based on the fact of the lawsuit between Zhou Jiweaku and ze company, the court has reason to believe that Zhou Jiweaku intentionally concealed his employment experience during this period, so as not to have a negative impact on the company he joined.It was not until September 2013 that Zhou started working with a biological products company in Shanghai.Zhou Jiweaku’s explanation of this is memory bias, which is not convincing, and our court does not accept it.As for the protest and Zhou Zhimu think, during the termination of the labor contract, Zhou Zhimu has been pregnant, so the company can not terminate the contract.In this regard, the court believes that the law does have special protection for pregnant female workers. Article 42 of the Labor Contract Law of the People’s Republic of China stipulates that the employing unit shall not terminate the labor contract as stipulated in Article 40 and Article 41 of this Law:…(4) Female workers are in pregnancy, childbirth or lactation;But be pregnant is not the gold medal of female worker disclaimer.Article 39 of the Labor Contract Law of the People’s Republic of China stipulates that the employing unit may terminate the labor contract if the laborer is under any of the following circumstances: (1) the laborer is proved to be unqualified for employment during the probation period;(2) seriously violating the rules and regulations of the employing unit;….Zhou Zhimu’s concealment of employment experience and record of unpractical employment information on his resume violates the agreement of both parties in the contract and the most basic professional ethics of the workers, so he shall bear the corresponding legal consequences.At the same time, Zhou Zhimu in the labor contract probation period, there are mistakes in the work.According to the above situation, the company rescinds the labor contract between the two parties, which reflects the right of independent operation of the enterprise.The law protects the legitimate rights and interests of the laborer, but rejects any attempt by the laborer to use the law for his own illegal purposes.To sum up, the company has legal grounds for terminating the labor contract between the two parties.The original judgment of the company’s illegal termination of the labor contract is wrong, and the court will correct it in accordance with the law.The company terminates the labor contract between the two parties according to law, and zhou’s request to restore the labor relationship between the two parties has no factual and legal basis and can not be supported. In view of the company’s voluntary compensation of zhou Zhiguo 36,000 yuan in the original trial, the court also expressed no objection to the original judgment in the process of the retrial, so the court maintains the judgment of the second trial.To sum up, the High Court made the following decision: Maintain the civil judgment of the second instance.Case No. : (2019) Huminzai No. 9 (the party concerned is an alias) transferred from: Dicheng Pufa Courier Station