As soon as she became pregnant, she was dismissed by the company on the grounds of "multiple attendance of less than 8 hours". Was it legally dismissed, or was it deliberately "found fault"? Recently, the Shanghai Yangpu District People's Court (hereinafter referred to as the Yangpu Court) heard such a labor contract dispute case.
*: If a pregnant woman is dismissed for "less than 8 hours on the job", can the company's rules and regulations "prescribe" everything? Ms. Gu (pseudonym) is an employee of a company. In April 2022, the company suddenly terminated the labor contract on the grounds that Ms. Gu's multiple attendance in 2021 was less than 8 hours, which constituted a de facto early departure, based on the employee handbook signed by Ms. Gu, which stipulates that employees who leave early more than 3 times in a natural month are serious violations of discipline. However, Ms. Gu found out that she was pregnant before the company issued the notice of termination, so she sued the people's court to request the resumption of the employment relationship.
Ms. Gu believes that since she joined the company, she has always complied with the company's attendance system known to her, i.e. the average monthly working hours are eight hours a day, and she has never disrupted or contradicted the company's management order. The company has never raised objections or corrections to its commuting time, and wages have been paid normally in 2021, and no deductions have been made on the grounds of early departure. In addition, because the company was already pregnant when the company terminated the labor relationship, it was illegally terminated, and the labor relationship should be resumed in accordance with the law.
The company believes that the employee has read and voluntarily signed the employee handbook when he joins the company, and if he or she attends less than 8 hours, it is an early departure, which is a serious violation of the company's rules and regulations, and the company can terminate the contract. Before the termination, the employer did not know that the employee was pregnant, and the position had been replaced by another employee, so it was legally terminated, and there was no condition for continuing to perform the labor contract.
After the trial, the Yangpu court held that the termination of the labor relationship was a relatively severe punishment, and if it was found that the employee had seriously violated the rules and regulations and exercised the right to terminate the labor contract on this ground, in addition to reviewing the legality of the system, the reasonableness of the implementation should also be considered.
First of all, the company's system stipulates that the commuting time is based on the definition of late arrival and early departure, but the employee handbook does not specify the off-duty time, so the company's applicable regulations on whether an employee's late arrival and early departure constitute a serious violation of discipline are not clear, and the company regards less than 8 hours of daily working hours as early departure, which lacks basis and is unreasonable.
Secondly, in the termination notice sent by the company in April 2022, the alleged disciplinary violations all occurred in 2021. It is common sense for employers to pay wages on a monthly basis and to review employees' attendance on a monthly basis, but the company has never mentioned the matter of early retirement to Ms. Gu before, nor has it requested rectification or punishment. In addition, looking at the attendance records, the total number of working hours in the days listed for less than 8 hours was very close to 8 hours, and Ms. Gu did not have the subjective intention of leaving early.
In summary, the People's Court held that the company's argument of early retirement based on less than 8 hours of working hours in 2021 lacked basis and was unreasonable, and that Ms. Gu's behavior did not reach the severity of terminating the employment contract, and from the perspective of protecting female employees, it ruled to restore the employment relationship. Later, the defendant appealed against the judgment, reached a settlement with the plaintiff during the second instance and withdrew the appeal, and the case has now taken effect.
The presiding judge of this case pointed out that the rules and regulations of the enterprise are an important means for the employer to regulate the behavior of employees and improve the economic efficiency of the enterprise. However, it is often seen in practice that employers use rules and regulations as a "basket" for dismissing employees, blindly "loading" them into employees' behaviors, arbitrarily expanding the right to operate independently, harming the legitimate rights and interests of employees, and not conducive to the construction of harmonious labor relations.
A qualified enterprise rules and regulations should be done:
1.The content is valid. As the "internal law" of the employer, although the rules and regulations reflect the will of the manager, they should still comply with the mandatory provisions of laws and administrative regulations, conform to public order and good customs, and should not be lower than the minimum standards of the law for the protection of employees.
2.Democratic process. In the rules and regulations, labor remuneration and working hours involving the vital interests of workers shall be discussed and put forward by the workers' congress or all employees, and determined through consultation with the trade union or employee representatives on an equal footing, so as to achieve "democracy first, then centralization".
3.Publicity Procedure. The purpose of the publicity procedure is to protect the employee's right to know, and the employer should adopt flexible and diverse publicity methods to ensure that the employee is in a state of knowing or should be aware, and then the rules and regulations are justified as the basis for the rights and obligations of both parties.
4.Reasonable. Good rules still need to be used reasonably, and the legality of the employer's termination of the labor contract should be comprehensively judged based on the nature of the labor enterprise involved in the case, the subjective fault of the employee, the number of acts, and the losses caused.
The judge reminded that the employer should formulate reasonable rules and regulations to standardize the management of employment. If you blindly apply the behavior of employees to violating rules and regulations, it is very likely to "shoot yourself in the foot".