Can Labor Relation be Resumed on Discovering Pregnancy after Negotiated Termination?

★Nutshell

Mrs Yang is employed in a factory in June 2016. In March 2018, both parties negotiated termination and signed the agreement which provides the termination date, severance, income and other welfare. The agreement provides no labor dispute between two parties. After the agreement is signed, the factory paid the severance and other duty. Two weeks after termination, Mrs Yang is diagnosed pregnant. Afterwards, Mrs Yang intends to resume the employment but the factory rejected for the reason of negotiated termination.

★Issue

Can labor relation be resumed on female employee discovering pregnancy after negotiated termination?

Mrs Yang thinks admittedly the agreement is signed by herself, but on that time she did not know the pregnancy, otherwise she would not sign it, therefore it is signed under major misunderstanding.

The factory holds that the agreement is signed under true expression without any duress or major misunderstanding.

★Judgment

The arbitration tribunal ruled that though Yang is pregnant when she signed the termination agreement, the law does not forbid termination, therefore the labor relation shall not resumed.

★Lawyer Tang’s Comment

This is a case on resuming employment on discovering pregnancy after termination. According to Labor Contract Law Art 42 that the employer cannot terminate female employee during pregnancy, maternity leave, lactation according to art 40 and 41, i.e. non-mistaken termination or economical redundancy. The law protects female employee under three periods and partially limits the termination rights on the employer. Art 36 also provides that employer can negotiate termination with employee. The law grants the right to negotiation on both parties, and negotiation is not the situation listed in Art 42. The specialty of this case lies in the employee claiming that when she signed the agreement to terminate, she did not know her pregnancy. She signed under major misunderstanding which is revocable under Contract Law. We tend to hold that this situation is not major understanding.

Mrs Yang, as a married employee, shall have reasonable expectancy on pregnancy. Compared to the employer, she herself shall pay more attention to her health situation. Her negotiation on termination shall be deemed as true expression.

Therefore Mrs Yang’s claim of illegal termination during pregnancy is not supported.