After submitting the resignation application, I found that I was pregnant, can I regret not leaving?

After the employee submitted an application for resignation, he found that he was pregnant. At this time, regretted asking for a resignation application. Is it feasible?Based on this, the company lifts labor relationships. Is it payment of economic compensation or compensation?

【Basic Case】

On June 13, 2014, Ms. He signed a "Labor Contract" with Company D, which stipulated that the contract period was from June 13, 2014 to June 12, 2017.

At 10:45 on September 9, 2016, Ms. He sent a system email to his superior leader Mr. Fan and Ms. Wei.Units) Services are now proposed to leave on October 31, 2016. I hope the company leaders will approve it. At the same time, thank your company for helping him. "At 10:58 on the same day, Mr. Fan responded to Ms. He and copied the email to Ms. Wei.I wish everything go well in the future. "

On October 22, 2016, Ms. He checked her pregnancy in the hospital.

On October 24, 2016, Ms. He sent an email to Mr. Fan and Ms. Wei again.On around Zhou, after careful thinking, I decided to stay in the company to continue working voluntarily. At present, good physical conditions can work normally without adverse reactions.Hope for your approval ".

On October 26, 2016, the sender sent an email to several people including Mr. Fan, Ms. He, including Noreply.state".

At 11:88 on October 28, 2016, NOREPLY sent an email to Ms. He. The content was based on Ms. He and the manager discussed the intention about the upcoming resignation. The current leaving process has been launched.31st and other content.At 5:36 pm on the same day, Ms. Wei sent an email to Ms. He. The content of the company’s business arrangements also re -arranged because of all your departure, so I could not accept your notice of resigning.

At 10:43 on October 31, 2016, Ms. He responded to Ms. Wei.

Since November 2016, Company D has not paid Ms. He, nor did she pay social security for her.Company D stated that Ms. He paid Ms. He 34331.69 yuan during the departure and settlement, and Ms. He recognized that she received the payment.

Ms. He applied to the Arbitration Commission for arbitration, requesting: 1. Confirm the termination of the labor contract illegally, and determine that Company D continued to fulfill the "Labor Contract" signed by the two parties to restore Ms. He’s work;From the time of illegally stopping its work in November 2016, the salary was stopped to restore work.(Other matters will not be discussed here. On March 6, 2017, the Arbitration Commission made an arbitration decision to reject the applicant’s arbitration request.

Ms. He refused to accept it, and appealed to the court.

【As an example】

Court of first instance: The cancellation of the resignation application issued by the employee did not form an unanimous opinion, and the cancellation was invalid.

The court believes that the dispute involved in the case is a dispute over labor disputes, and the focus of the controversy of the case is whether there is a fact that the company D has the fact that the company D is illegal to terminate the labor contract.

1. Regarding whether Ms. He’s application for retracement application has suffered legal effect.

First of all, on September 9, 2016, Ms. He issued an application for resignation to Company D, which was applied for resignation on October 31.On the same day, Company D replied to Ms. He and agreed to leave on October 31.At this point, the two parties have reached a conclusion on Ms. He’s departure on October 31, and the process does not have fraud, coercion, and danger of taking people.Ms. He did not know her pregnancy when she issued an application. It was the subjective true meaning of the person as a complete civilian ability. It was not a category of major misunderstandings. Therefore, the civil behavior of the two parties was the true meaning of the two parties.It should be fulfilled.The court’s resignation of Ms. He is not supported by the attached limit.

Secondly, the application of the departure sent by Ms. He is essentially the expression of the dismissal of the labor contract. Once the other party arrives, it will have the consent of the other party.On October 24th, Ms. He sent an email to explain that because she was pregnant, she canceled her departure application.On October 28, Ms. Wei responded to the email and did not agree with Ms. He’s application for resignation.It can be seen that Company D did not agree with Ms. He to cancel the resignation application, and the two parties did not form a consistent opinion on the withdrawal application.

Third, the person who communicated with Ms. He has always been Mr. Fan and Ms. Wei. The emails of the sender submitted by Ms. He cannot determine the identity information of the sender.Ms. He stated in the trial of the first trial. The email was the system email of Company D. The court of first instance believed that if the email was indeed a system email of Company D, then it did not have the ability to think and communicate as a system tool, and did not have the intention of making intentions.The subject qualification, so the "resignation" issued by it has no legal effect.

In summary, Ms. He’s application for retraction has not experienced legal effect.

2. Regarding whether there is a factual problem of the company D in illegal to lift the labor contract.

Regarding the departure, the two sides have negotiated on September 9, 2016.According to Article 36 and 42 of the Labor Contract Law of the People’s Republic of China, the employers shall not be resolved in accordance with the provisions of Article 40 and 41 of this Law.However, it is not stipulated that in the case of negotiation between the two parties, employers cannot terminate the labor relationship with female employees during pregnancy.Ms. He and Company D had reached an agreement on September 9 to raise their labor contracts, and Ms. He took the initiative to propose.The employer that does not meet the law of the law shall not terminate the labor contract.In accordance with Article 41 and 43 of the Labor Contract Law of the People’s Republic of China, the union is required to be notified by employers and unilateral lifting of labor contracts.The labor contract between the two parties is resigned by the workers and the negotiation with the employer to terminate the labor contract. It does not belong to the situation that must be notified by the union.Therefore, Ms. He’s claim does not support the court.

Employee appeal: As a pregnant woman is specially protected by the law, it has the right to decide to continue to perform the contract

1. The application for resignation was canceled on October 24, 2016. On October 26, Company D also sent a notice to the relevant personnel and departments to cancel its resignation application to the relevant personnel and departments on October 26.Company D still relieves the labor contract on the grounds of it, and it should be identified as illegal termination.

2. During the existence of labor relations, as a pregnant woman, it is specially protected by the law. It has the right to decide to continue to perform the contract. Once it should continue to be fulfilled, it will be valid. Company D has no decision.The labor contract between the two parties should continue to perform.

3. The behavior of the termination of the labor contract seriously damaged its legitimate rights and interests, causing it to be unable to reimburse maternity medical expenses, maternity allowances and enjoy maternity salary.

The court of second instance: The law does not specify that after the female employees of pregnancy are proposed to terminate the labor contract, the employer cannot terminate the labor contract

It is also found that in the first trial trial, Ms. He stated that Noreply was named by the company’s system, which belongs to system mail.

The court believes that the termination of labor contracts.According to the facts found in this case, Ms. He sent an application for resignation to Company D on September 9, 2016. The application was left on October 31, 2016. On the same day, Company D replied to Ms. He and agreed with Ms. He’s resignation application.The Labor Contract was unanimously lifted after Ms. He applied for resignation.Ms. He appealed that her resignation application was canceled on October 24, 2016. Company D also sent a notice to the relevant personnel and departments on October 26 in the name of the system.And failure.According to the facts found in this case, the contents of the emails sent by the issuer NOREPLY to including Mr. Fan and Ms. He on October 26 are: "Dear team, please note that DAN, 672535’s departure has been revoked. You can log in to log in.OFFBOARDINGTOOL View employee departure status ".The email is sent by the system. From the content of the email, Ms. He has performed the operation of "resignation", or the company D agreed that Ms. He to cancel the resignation application.The emails sent stated that "Ms. He and the manager discussed the intention of the upcoming resignation, the current resignation process has been launched, Ms. He’s last working day is October 31, 2016" and Ms. Wei sent Ms. He on the same day to Ms. He He.Email, inform Ms. He "The company’s business arrangements have re -arranged all your departure, so you can’t accept the notice of canceling your resignation" and other content. You can determine that Company D has not agreed with Ms. He to revoke the resignation application, and Ms. He did not provide it.Other evidence proves that Company D agreed to the application for resignation, so Ms. He’s claim that both parties had unanimously expressed the withdrawal of her resignation application did not match the facts that the failure was to find out, and the court would not accept it.

Ms. He appealed that she was pregnant during the existence of the labor contract between the two parties and continued to perform the labor contract. The special regulations of the female employees during pregnancy should be applied, that is, it was determined that the company D did not decide.The labor contract between the two parties should continue to perform.In this regard, the court believes that relevant laws and administrative regulations stipulate that employers shall not terminate the labor contract of female employees during pregnancy, but the law does not stipulate that the employer cannot terminate the labor contract after the female employees have proposed to terminate the labor contract during pregnancy.In this case, Ms. He proposed to the company D to terminate the labor contract. Company D agreed that Ms. He’s intention to terminate the labor contract had legal effect.Although Ms. He found that when Ms. He agreed with Ms. He to discover pregnancy, Ms. He could not change the fact that the two parties negotiated and unanimously terminated the labor contract.

Because the labor contract between Ms. He and company D was resolved on October 31, 2016, Ms. He requested to confirm that the company D was illegal to lift the labor contract, and the company D’s proposition to restore her work.According to the basis, the court of first instance does not support it.The labor contract between Ms. He and company D was lifted on October 31, 2016. Therefore, Ms. He requested Company D to pay her wages from November November to November 2016, and it was not improper without support in the first instance.

In summary, Ms. He’s appeal request cannot be established and should be rejected.

【Xiaobian has something】

Regardless of whether or not it belongs to the third phase of the employee, the preview of the right to terminate belongs to the right to form.

Labor contract termination of sub -negotiations, unilateral lifting of workers, and unilateral lifting of employers.To evaluate whether the termination of the labor contract is illegal, we need to determine the type of labor contract termination.

From the perspective of this case, employees have submitted an application for resignation and clarified to leave on October 31. It belongs to the "Labor Contract Law of the People’s Republic of China" in Article 37 of the Law of the People’s Republic of China.The unit makes an intention to agree that the right to terminate the workers belongs to the right to form. Once the meaning of the termination is reached, the legal effect occurs.

The foresee of the workers is different from Article 36 of the Labor Contract Law of the People’s Republic of China. Article 36 of the Labor Contract Law of the People’s Republic of China is whether it needs to be promised to be promised to be loliched by the party or employer.That is to achieve the purpose of lift the labor contract, the offer can be withdrawn before or at the time of the other party, or it can be revoked before the other party makes a commitment; and the right to form a unilateral means that the other party will have the effect.The meaning of the withdrawal of rights can be withdrawn before or at the time of the other party, but it must not be revoked.

Moreover, its leadership in this case has responded to the meaning of "approval" that day.

Reference reading (1): Employees actively resigned.

Reference reading (2): Is there any compensation for this situation?After the employee’s impulse resigned, he asked to withdraw, and the company refused!

Reference reading (3): After the employee had a resignation report, he cheated back and torn back. Court: It is useless to tear and resign!

Reference Reading (4): After the resignation application, it only withdrawn from two days to withdraw, and employees claim more than 300,000 yuan to the company!

Reference reading (5): After the employee submits the resignation letter, it is torn again. The Arbitration Commission: It is deemed to be withdrawn!Intermediate Court: I can’t stand it anymore!

Reference reading (6): The resignation of the workers belongs to the right to form. After the departure application is issued, the withdrawal is withdrawn, and the cancellation is invalid!

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