★ Brief
Leng joined a medical technology company in June 2016 and was promoted to the position of regional manager after several promotions, and the parties renewed the labor contract until June 2021.
In December 2019, Leng was hospitalized for 10 days due to ill-health. On the day following her discharge from hospital, Leng received a ‘Notice of Termination of Labor Contract’. It turned out that the company considered that Leng’s actual job was to go out to run business and sign orders, which did not belong to the management post, and therefore terminated the employment relationship with Leng on the grounds that Leng had reached the age of 50 in September 2019, reaching the statutory retirement age and the conditions for statutory termination of the employment contract.
Thus, Leng consulted the household registration of the Ministry of Human Resources and Social Security (MOHRSS) retirement window and the mayor’s mailbox consultation, after reviewing the file and labor contract, both replied her that it is the cadre status, and engaged in management positions.
Leng then applied to the Labor Arbitration Commission to restore labor relations, but the Arbitration Commission decided not to accept the case on the grounds that it did not fall within the scope of labor disputes. Leng was not convinced and appealed to the court.
★The verdict
After hearing the case, the court held that, firstly, disputes arising from whether or not they belonged to a management or technical position did not fall within the scope of labor dispute cases. Secondly, if the retirement age of female workers involves the nature of the position, whether they are engaged in management and technical positions is confirmed by the employer. Although Leng claimed that she was in a managerial position, she did not provide conclusive evidence to support her claim and was denied by the company, so she should bear the legal consequences of not being able to produce evidence. The court did not support Leng’s request for restoration of labor relations, which was not based on facts and law.
★ Comment of Lawyer Tang
The focus of the dispute in this case is mainly on the attributes of Leng’s position.
Disputes arising from job attributes occur from time to time, and the reason for this is that, according to Article 1 of the former Shanghai Social Security Bureau’s “Provisions on Reviewing Certain Issues Concerning the Retirement and Retirement Procedures for Employees of the City’s Enterprises”: “Female employees who have reached the age of 50 (55 for those engaged in management and technical positions) and have met the retirement conditions (the same below) may apply for retirement in accordance with the relevant provisions The retirement procedures shall be in accordance with the relevant regulations. The job attributes of female workers at the time of retirement directly determine their statutory retirement age.
In practice, when a female employee retires, the nature of her position is confirmed by the employer and reported to the social security department for the record. In the absence of clear criteria for classifying the nature of jobs, if the employer identifies female workers in management or technical posts as operating, production or service posts and requires them to retire at the age of 50, this will inevitably undermine the labor rights and pension entitlements of some female workers.
In this regard, we call on the relevant departments to issue relevant regulations to clarify the criteria for assessing the nature of “management and technical posts” and to review them in order to protect the labor rights of female workers.
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