Is It Necessary To Sign A Written Contract During The Statutory Delay?

In March 1, 2013, Qian Mou joined a medical equipment Co., Ltd. in Shanghai, and served as sales manager. The two sides signed a labor contract with a deadline of February 28, 2014, which stipulated that the basic salary of a monthly salary was 11500 yuan before taxes, and a royalty was also paid.

On the day of entry, the equipment company delivered the employee handbook to Qian Mou. The thirty-ninth Manual of staff manual stipulates: "the employee can leave work without reason for 3 days, and the equipment company may unilaterally terminate the labor contract."

In early December 2013, Qian Mou confirmed that he was pregnant after being examined by the hospital and informed the equipment company of the fact of pregnancy.

In mid March 2014, the equipment company and Qian Mou negotiated renewal of labor contracts.

The equipment company provided the written labor contract text to the money, which adjusted the salary to 8500 yuan for the basic salary and 3000 yuan for the performance appraisal wage, and the other contents were not changed.

Qian believes that the company has lowered the monthly basic wage standard and refused to renew the new labor contract.

The two sides failed in many consultations.

Beginning in March 25, 2014, Qian began to take an annual leave. After the end of the annual leave, he began to apply for sick leave in accordance with the leave of absence process through the company's OA system, but he did not submit his sick leave in time.

In April 14, 2014, the equipment company approved its application for sick leave in the OA system, but asked for money to make up the sick leave.

After that, he paid the sick leave.

In May 13, 2014, the equipment company applied for refund of money in the OA system. The reason was that he did not submit the latest sick leave.

Qian went to see a doctor and issued two sick leave notes to July 12, 2014.

In July 9th of the same year, Qian gave birth to a woman.

In June 18, 2014, the equipment company dismissed the company on the grounds that he did not attend the office and did not submit sick leave for the reason of absenteeism, and sent the notice of the termination of the labor contract to Qian Mou.

After receiving notice, Qian believed that the equipment company was relieved of its illegal behavior. Because the OA system of the equipment company did not accept its own leave, its sick leave was submitted through the face-to-face service of the family members.

As a result, Qian applied for labor dispute arbitration, requiring the equipment company to pay double wages and illegal payment of labor contracts for the unwritten labor contracts between April 1, 2014 and June 18, 2014.

After labor arbitration, first instance and second instance trial, the case found that the equipment company was illegal in discharging labor contract, and it needed to pay compensation to Qian Mou, but there was no need to pay double wages without signing a written labor contract.

Li Huaping, lawyer of Huacheng law firm in Shanghai: this case mainly involves two focal points of whether the three term of female workers' labor contract is postponed, whether it is necessary to conclude a written labor contract and the legality of relieving the labor contract. This case is of universal significance.

1. When a labor contract appears to be legally postponed, the employer shall not need to renew a written labor contract to confirm it.

According to the provisions of the forty-second and forty-fifth articles of the labor contract law, when the labor contract expires, the female workers are in the period of pregnancy, childbirth and lactation, the employer shall not terminate the labor contract, but the labor contract shall be postponed until the corresponding circumstances disappear.

The statutory extension is a mandatory provision of the law. If the employer terminates the labor contract when the labor contract expires, it is an illegal termination.

Therefore, as long as the statutory contract is postponed after the expiration of the labor contract, there is no need for both parties.

Negotiation confirmation does not need to be confirmed by renewing the labor contract.

In this case, Qian Mou is in the period of pregnancy when the labor contract expires, and it is in conformity with the statutory postponed condition. The equipment company shall not terminate its labor contract.

Although no agreement was reached between the equipment company and Qian Mou on the renewal of the labor contract, it can not change the fact that the two parties are still within the statutory extension period of the original labor contract.

Therefore, in the statutory delay, Qian argued that no written labor contract was required, requiring the equipment company to pay two times the wage gap without legal basis.

Two, it is prudent to terminate labor contracts on the grounds of serious violation of discipline by three female employees.

The forty-second provision of the labor contract law stipulates that during the period of pregnancy, childbirth and lactation, the employing unit shall not terminate its labor contract in accordance with the provisions of the fortieth and 41 articles of the labor contract law.

But if there are "three phase" female workers in pregnancy, childbirth and lactation,

One of the provisions of the thirty-ninth clause is that it is not illegal for the employer to terminate his labor contract.

In practice, it is not correct to understand that female workers can not terminate the labor contract if they are in the "three phase".

Of course, since the female workers are in the "three stage" and are subject to special labor protection, employers should take care of their love from the perspective of humanization, especially when it is necessary to terminate the labor contract.

In judicial practice, when the employer terminates the labor contract of the three female employees,

The burden of proof required by the employer will be more severe in comparison.

When the relevant facts can be fully proved, they tend to protect workers, and usually make decisions that are not good for employers.

In this case, Qian Mou is defective in the process of asking for leave, and is not strictly in accordance with the provisions of the company, in fact, there is a certain fault.

The equipment company should fulfill the corresponding duty of reminding and inform the company to fulfill the procedures for asking for leave, and inform them that the corresponding legal consequences are more appropriate.

Since Qian is in the "three phase" and there are records of medical records, it is not inappropriate to judge the employer's dismisson from the angle of protecting laborers.

At the same time, it is also necessary to remind workers that if sick people need to ask for sick leave, they must strictly follow the rules and regulations to fulfill the procedures for taking leave and retain relevant leave proof so as not to be relieved of labor contracts because of serious violation of discipline.