Smoking In Special Jobs May Be Fired.

　　 Q: is it possible for employers to violate the "tobacco control order" employees' disciplinary punishment or even directly terminate the labor contract?

A: in March 1, 2017, it was officially called "the most stringent smoking control order in Shanghai history". The Ordinance provides more stringent regulations for the prohibition of smoking and administrative penalties for violations of regulations. If employees are subject to administrative penalties for violating the "smoking control order", can employers handle them according to discipline?

This problem needs to be discussed in different parts. First, we need to identify whether employees violate the "tobacco control order" in working hours and workplaces. If staff In violation of the "smoking control order" in the non working place during the non working hours, the employer should not impose any punishment on the rules or regulations, otherwise it will be overly suspected of management. If the employee violates the "smoking control order" in the workplace, the employer can punish it according to the rules and regulations.

Another special case is that employees violate the "smoking control order" at work time, but not in the workplace, such as in customer units, government offices, etc. Because the employees belong to the state of performing their duties, their image not only represents their individual but also represents the image of the employer. If the user image is damaged due to the violation of the "smoking control order", we tend to think that the employer can still punish it according to the rules and regulations.

As for whether employees can be released directly because of their violation of the "smoking control order". Labor contract More specific problems need to be analyzed in detail. Under normal circumstances, employees in the workplace smoking is not enough to be severely punished by the termination of the labor contract. But for some places where no fire is allowed, such as gas stations, flammable goods stores, etc. Employees will continue to act on their own when they know that they can not smoke and smoke can cause serious consequences. Employers will be supported by rules and regulations to terminate employee labor contracts. Of course, it does not exclude the possibility that the judicee authorities question the reasonableness of this clause.

　　 Q: is it a violation of the principle of "no longer punishment" when employers impose administrative penalties on smokers?

A: we think that employing units to punish employees again is not against the principle of "no longer punishment". The principle of "no more punishment" is a concept in the category of administrative law. According to the twenty-fourth provision of the administrative punishment law of the People's Republic of China, "no administrative penalty shall be imposed on a party for the same offence for more than two times."

Therefore, the principle of "no more punishment" will mean that the administrative organ shall not impose more than two penalties on an illegal act of the party. The employer is not an administrative organ. The employer's punishment for employees' smoking in the workplace is based on their employment management rights and belongs to the category of labor law. There are two different legal relationships with administrative penalties for staff who violate the "tobacco control order". There is no contradiction and overlap between the two, so it is not against the principle of "no longer punishment".

　　 Q: Employing unit Was fined for violating the "smoking control order", could he ask the employee to pay the bill?

Answer: the employer violates the "tobacco control order" and is subject to administrative punishment, so the employee can not be asked to pay the bill. According to the eighteenth regulation of smoking control in public places in Shanghai, the article stipulates: "where a smoking forbidden place is in violation of the provisions of article ninth of this regulation, it shall be ordered by the relevant departments under the sixteenth regulation of this regulation to make corrections within a specified time, and a fine of not more than two thousand yuan or less than ten thousand yuan shall be imposed. If the circumstances are serious, a fine of ten thousand yuan or above thirty thousand yuan shall be imposed."

We can see that the ninth one is to stipulate the obligations of the unit where smoking prohibited places should be fulfilled: (1) to implement volunteers who discourage smoking or to discourage smoking; (two) to do a good job in anti smoking publicity and education; (three) to set up a unified ban on smoking labels and regulatory calls; (four) do not set up any smoking related appliances; (five) discourage smokers; (six) report to the regulatory authorities if they do not listen to dissuade or refuse to leave smoking places.

Employees' smoking in the workplace does not directly lead to the administrative penalty of the employer. Only when the employer fails to fulfill the administrative obligations stipulated in the ninth regulation of the regulations, will the administrative penalty be imposed. Therefore, the employer shall not transfer the punishment that he has not fulfilled his statutory obligation to the employee. Here, we urge you not to smoke indoors or in public places, which is responsible for yourself and for the people around you. At the same time, employers also need to fulfill their management responsibilities to create a healthy and comfortable working environment for their employees.

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