Foreigner on Maternity Leave Denied Full Wages, Then She Sues。。。

Source: OT-Team(G),文昌市人民法院

  According to an announcement from the Wenchang City People's Court on August 9, the court recently concluded a case involving an employer's failure to provide maternity insurance, which resulted in a foreign female employee being unable to receive related benefits. 

Basic Case

  S, a South African national, joined L School in August 2021. She took maternity leave from August 2022 to February 2023 and mutually agreed to terminate her employment with the school at the end of January 2023. S claimed that L School did not fully pay her deserved wages during her maternity leave and applied for labor arbitration. The arbitration confirmed that S's employment with L School had ended and that the school owed her over 40,000 yuan for unpaid wages during her maternity leave. L School, arguing that they had fully paid S her basic salary during the leave, took the matter to court, requesting a ruling to exempt them from paying the wage difference.

Court's Judgment

  During the trial, it was established that the labor contract stipulated the use of Chinese law to resolve disputes, making Chinese law applicable in this case.

  The Wenchang Court referred to Articles 5 and 8 of the Special Rules on the Labor Protection of Female Employees, which mandate that employers who do not enroll female employees in maternity insurance must pay maternity leave wages based on their pre-leave salary standards.

  L School failed to provide evidence to prove that it paid maternity insurance for S, so it should pay maternity leave wages to S according to the pre maternity leave wage standard of the employee. Although S did not provide labor during maternity leave, her pre maternity leave salary standard includes two parts: basic salary and performance-based salary. The plaintiff's payment of maternity leave salary according to the basic salary standard violates Article 5 of the Special Rules on the Labor Protection of Female Employees, Article 11 (1) of the Several Provisions on the Protection of Women's Rights and Interests in Hainan Province, and Article 27 of the Regulations of Hainan Province on Population and Family Planning.

  According to the labor contract, S's salary comprised both a basic salary and monthly performance bonuses. Therefore, S's wages during maternity leave should have been her full attendance salary, inclusive of performance bonuses. The court ruled that L school should compensate S for the salary difference of 51000 yuan (8500 yuan x 6 months) to cover the unpaid wages during her maternity leave.