Form Of Unilaterally Dissolving Labor Contract By Employing Units

According to the relevant provisions of China's labor contract law, the employer unilaterally dissolves the labor contract in two forms.

One is instant dismissal. It is mainly based on the thirty-ninth law of the law, that is, one of the following circumstances: the employer may rescind the labor contract: it is proved to be unsuitable for employment during the probation period; it is in serious violation of the rules and regulations of the employing units; serious dereliction of duty, malpractice and damage to the employing unit; the laborer establishes labor relations with other employers at the same time, which seriously affects the completion of the work tasks of the unit, or refuses to make corrections by the employing unit; because of the first provisions of the twenty-sixth, first, and the provisions of the law, the labor contract is invalid; and the criminal responsibility is investigated according to law.

The other is a notice. Dismiss 。 It is mainly based on the fortieth clause of the labor contract law, that is, one of the three cases stipulated in the article of law. The employer can terminate the labor contract in writing 30 days ahead of time, or pay the worker one month's wages.

It can be seen that there are relatively strict conditions for the exercise of unilateral rescission rights by employers.

Recently, media reports about the "wonderful" dismissal of some employers have attracted people's attention.

A worker who had forgotten to turn off the lamp after working overtime at night was relieved of his employment contract. The unit responsible person said that its work place is the cultural relic protection unit, the worker's behavior causes the unit to cause the serious security hidden danger.

Xiao Chen, a staff member of a physical examination center in Guiyang, was dismissed. The reason was that she was "wearing men's clothing, and the image was not consistent with the company's requirements".

Zhang Zhang, a staff member of a chemical fiber company in Zhejiang Province, came to work on his own day off, and was relieved by the company's illegal attendance. Eventually, the two sides caused labor disputes, Zhang asked the company to pay economic compensation.

Although these incidents happen in different enterprises and involve different post workers, there are similarities: laborers are disengaged from labor contracts with some unreasonable reasons. Are these practices legal?

The employers in the above cases are mainly based on " Labor Contract Law Thirty-ninth article. So, is their dismissal legal? Is it just a "no table lamp" violation of the unit's "shut down power" requirement, has reached the "serious safety risks" and "serious violation of regulations"? Is the dress style inconsistent with the unit requirements, should it be dismissed?

For the above case itself, He Ping, associate professor of the school of grammar at Wuhan University of Technology, said: "the two workers have not reached the level of serious damage to the enterprise and should not be dismissed because they have never turned off the desk lamp or clothing."

He Ping believes that in reality, the corresponding responsibilities of workers should be identified and how the responsibilities should be borne. The law has not yet clearly stipulated that it is worth further thinking. In order to protect the legitimate rights and interests of employers and laborers in this process, we must define workers' major damage to employers, and we must comply with the corresponding procedures and reasons.

He Ping believed that employers should prove employees from the following aspects. Dereliction of duty And cause significant damage: first, employees have dereliction of duty, and to a serious degree; second, the loss of employers reached the amount agreed in the labor contract, and should be a direct economic loss; third, the employee's dereliction of duty and the employer's economic losses have a direct causal relationship. Then, how does he identify "great harm"? He believes that the law does not specify the "significant harm", and there is no uniform standard in judicial practice for reference. According to the provisions of the twenty-fifth and third paragraphs of the Ministry of labor on the provisions of the labor law, "significant damage" is stipulated by the internal rules of the enterprise. Due to the fact that enterprises are not the same, it is not convenient to stipulate the specific amount of "serious damage". When disputes arise, they can be identified by the labor dispute arbitration committee.

In the above cases, the case of Zhang Zhang of chemical fiber company has been concluded. It has struck a warning bell for the employer's illegal exercise of the right to rescind.

The court hearing the case held that although Zhang did not work overtime for his company's overtime work, the company did not pay overtime for this purpose, nor could it prove that it was not lawful to disprove his system. Therefore, the court supported Zhang's request.