Nutshell
Ms Wang was employed by a Shanghai company in January 2010,the labour contract began from January 2010 to December 2015. Ms Wang found herself pregnant on February 2013 and had maternity leave from November 2013. During her pregnancy, she took one month sick leave but had no annual paid leave in 2013.
When get back to work, Ms Wang reported that she was supposed to have 5 days annual leave in 2013, therefore she should be compensated 300% daily income of the 5 days. The company denied Ms Wang’s claim for the reason that Ms Wang had one-month sick leave and then maternity leave which shall also be regarded as sick leave, therefore accumulative above two month.
Ms Wang indicated refuse and claim this to the labour arbitration.
Issue
The issue of this case is whether Ms Wang shall have the annual leave of 2013.
The company believed that an employee whose work years accumulative more than one year but below ten years shall not have the annual leave of the same year if have over-two-month sick leave. Ms Wang didn’t work over ten years and took more than 3 month leave because of sick leave and maternity leave, therefore she should not have the paid annual leave. Additionally, she got back to work on February 2014, which made the company impossible to arrange the annual leave in 2013.
Ms Wang claims that she took one-month sick leave during pregnancy and maternity leave shall not be considered as sick leave because it is legally given to female employee by law. The sick leave shall be above 2 months to deny annual leave, which is not her case.
Judgment
The arbitration think Ms Wang’s maternity leave is given according to Special Stipulation on Labour Protection of Female Employee and other regulations. For employees joined the maternity insurance, her income shall be covered by maternity insurance fund according to the average income of the company during maternity leave which shall not be considered as sick leave.
And according to the Measures for the Implementation of Paid Annual Leave, maternity leave shall not be counted as annual leave, therefore the company shall give the employee 5 days annual leave of 2013. Eventually, under the active coordination of arbitration, the company agree to give 5 days leave during 2014 and Ms Wang withdraw the case.
Comment by Lawyer Tang
This is a representative annual leave dispute. Many company would think female employee get low work efficiency after get pregnant and since the long time maternity leave is enjoyed, annual leave shall no longer be granted. However, this kind of thought is not supported by law.
Rules on Paid Annual Leave implemented on January 1st 2008 grants 5 days,10 days and 15 days paid annual leave according to different working years to protect the employee’s right of holiday and to encourage the activeness of work.
Annual paid leave is the given right of holiday by law but the law also provides the special circumstance where employee shall no longer have the annual leave of the same year.
Article 4 of Rules on Paid Annual Leave provides that under the following circumstances, the employee shall no longer have annual leave, (a) the employee have winter and summer holiday longer than annual holidays; (b) the employee have above 20 days affair leave which is not deducted any salary; (c) the employee whose working years is above 1 year but less than 10 years have accumulative sick leave more than 2 months; (d) the employee whose working years is above 10 year but less than 20 years have accumulative sick leave more than 3 months;(e) the employee whose working years is above 20 year have accumulative sick leave more than 4 months. That is to say under the above situations, the company can deny the employee’s annual leave. But in this case, Ms Wang’s unable to work because of maternity leave didn’t fit in any of the above situation.
As to whether maternity leave shall be considered as annual leave, Article 6 of Measures for the Implementation of Paid Annual Leave provides that Home leave, marriage or bereavement, maternity leave and other holiday granted by law and shutdown leave from work related injury shall not be counted in annual leave. Therefore Ms Wang’s maternity leave shall not be counted as annual leave, the company shall grant her the annual leave.
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