The employer unilaterally terminate the labor contract, not only in strict accordance with certain legal conditions, but also to fulfill the corresponding procedures. Otherwise, the procedure is not legal, will also lead to the result of losing the case and increase the cost of terminating the labor contract. Here, let's take a look at the employer unilaterally terminate the labor contract to perform what procedures .
(a) Prior notice to the union
Article 41 of the Labor Contract Law provides that in the four cases of layoffs, the employer needs to explain the situation to the union or all the employees thirty days in advance, and after listening to the views of the union or employees, report to the labor department, that is, the union has the right to know and the right to make suggestions to the employer to lay off employees. Article 43 stipulates that when an employer unilaterally terminates a labor contract, the employer shall notify the labor union of the reasons in advance. If the employer is in violation of the law or breach of contract, the trade union shall have the right to request the employer to rectify the situation, and the employer shall notify the trade union in writing of the results of the processing after studying the trade union's opinion, i.e., the trade union shall have the right to decide on the unilateral termination of the labor contract, and shall have the right to reject the case when it is unlawful or unreasonable and shall have the right to be informed of the results of the processing further. This requirement in Shenzhen judicial practice has not yet really implemented, but the author believes that it is necessary to inform the employer of the existence of such provisions, perhaps soon to be further implemented in judicial practice.
(B) notice to the workers
The employer to terminate the labor contract, must be issued in writing and sent to the workers, otherwise the decision to terminate the labor contract does not take effect. However, in practice, there are many cases in which workers refuse to sign the notice and the employer has no way to force them to do so. It is suggested that the following countermeasures can be taken: 1. When making the employee's entry registration form, add a column that reads: "When the company's relevant written documents and notices cannot be delivered directly to me, I confirm that my home address filled out in this form is the address for delivery by mail." 2. A clause is added to the Employment Contract: When the relevant written documents and notices of Party A (the employer) cannot be delivered directly to Party B (the worker), Party B confirms that the home address entered in the Employment Contract is the postal delivery address. In the event that the worker refuses to sign for the delivery, the relevant documents shall be delivered by mail to the worker's home address as stated above, and the proof of delivery shall be retained as evidence.
(3) Procedures within the employer
In the management of employment, the employer must collect evidence to prove and confirm the objective facts in the event that a worker has violated discipline, made a mistake at work, or has caused significant damage, and must notify the worker in writing so that the worker can confirm or dispute the facts. Before the termination of the labor contract with the worker must collect sufficient evidence, here to prove that the worker seriously violates the rules and regulations or labor discipline as an example, to explain the requirements for proof.
1, how to collect evidence of violation of rules and regulations or labor discipline?
The situation of such cases in real life varies greatly, so the evidence of violation of rules and regulations varies, and it is not possible to apply a formulaic approach. Usually the following forms of information can be used as evidence: (1) the disciplinary employee's "review", "plea", "plea", "disciplinary situation Explanation" and so on; (2) the disciplinary record signed by the employee himself, penalty notice, etc.; (3) other employees and the testimony of those who know; (4) the incident involves physical evidence (such as damaged production equipment, such as physical evidence is inconvenient to retain, then take a clear photo, while the photo should also show the time of the year, month, day and time); (5) audio-visual materials (such as the audio recording of the parties stating the incident, video recordings, video recordings, video recordings of the parties stating the incident); (6) the employee is not allowed to use the information of the employee's disciplinary record; (7) the employee is not allowed to use the information of the employee's disciplinary record; (8) the employee's disciplinary record, punishment notice, etc. Audio and video recordings of the parties stating the incident); (6) the relevant government departments to deal with the opinions, processing records and certificates, etc.. Written evidence is the most powerful evidence, especially written evidence signed by the disciplined employee, should be collected and retained as much as possible.
2, the collection of evidence:
(1) the establishment of a daily written system and file-keeping system; (2) on the "big mistakes do not make, small mistakes constantly" of the employee's disciplinary action, should pay attention to the usual records. Every time a disciplinary action, the enterprise has made the corresponding written materials, requiring employees to sign. If the employee does not want to deal with the material on the signature, the penalty can be deducted from the wages of the punishment, in the payroll indicate the content of the penalty, by the employee in the receipt of wages and sign, and in the payroll indicate that the amount of wages have objections, should be raised within 7 days; (3) of illegal behavior (such as gambling, theft, fighting, drug abuse, etc.) employees, you can ask the government departments to deal with the relevant government departments to handle the conclusions or records, is strong evidence conclusions or records, is strong evidence.
(4) Special Procedures
Special procedures vary according to the legal conditions for termination of labor contracts. For example, if an employee is unable to perform his original job, the employer must arrange another job for the worker beforehand when terminating the contract; if the worker is unable to perform his job, the employer must train or transfer the worker before terminating the labor contract; if a change in circumstances makes it impossible to perform the labor contract, the employer must negotiate a change in the labor contract with the worker before terminating the contract; and before laying off the workforce, the employer must report the layoffs to the local labor security administrative department. Before laying off employees, the employer must report to the local labor security administrative department on the plan to reduce the number of employees, as well as the opinions of the trade unions or all the employees, and listen to the opinions of the labor security administrative department; the words "arrange another job", "train or transfer", "negotiate a change in the contract" and "negotiate a change in the contract" are not included. Consultation first change of contract" and "advance report" is a special procedure, should pay attention to the combination of statutory conditions, will not be repeated here.
(E) after the obligatory procedures
Employers in the termination of the labor contract, should be issued for the workers to terminate the labor contract or certificate of separation, and is obliged to within 15 days for the workers to handle the file materials and social insurance relations transfer procedures.
It seems that the employer wants to unilaterally terminate the worker is not an easy thing, but the worker can not think that the employer can not terminate the labor contract. This article is organized and edited by the lawyer 365 small editor, I hope it can help you.
Chapter IV termination of labor contracts and termination
Article 36 of the negotiated termination of the labor contract employer and worker consensus, you can terminate the labor contract.
Article 37 Termination of Labor Contract by Workers' Advance Notice Workers may terminate the labor contract by notifying the employer in writing thirty days in advance. A worker may terminate an employment contract by giving three days' notice in advance to the employer during the probationary period.
Article 38 If a worker unilaterally terminates the labor contract, the worker may terminate the labor contract if the employer does any of the following:
(1) fails to provide labor protection or labor conditions in accordance with the agreement in the labor contract;
(2) fails to pay labor remuneration in full and on time;
(3) fails to pay social insurance premiums for the worker in accordance with the law;
(4) Where the rules and regulations of the employer violate the provisions of laws and regulations to the detriment of the rights and interests of the workers;
(5) Where the labor contract is invalidated due to the circumstances stipulated in the first paragraph of Article 26 of the present Law;
(6) In any other circumstances in which the workers may terminate the labor contract as stipulated by the laws and administrative regulations.
If an employer forces a worker to work by violence, threat, or unlawful means of restricting personal freedom, or if an employer directs or orders risky work in violation of regulations, endangering the personal safety of the worker, the worker may terminate the employment contract immediately without prior notice to the employer.
Article 39 An employer may terminate an employment contract unilaterally (negligent dismissal) if a worker:
(1) is proved to be incompatible with the conditions of employment during the probationary period;
(2) is in serious violation of the employer's rules and regulations;
(3) is in serious dereliction of duty, engages in private malpractices and causes significant damage to the employer; or the employing unit;
(4) a worker who simultaneously establishes labor relations with other employing units, which seriously affects the accomplishment of the unit's work tasks, or who refuses to make corrections upon the employing unit's proposal;
(5) a worker whose labor contract is invalidated due to the circumstances stipulated in Paragraph 1, Subparagraph 1 of Article 26 of this Law;
(6) a worker who is being investigated in accordance with the law for criminal liability.
Article 40: In the event of dismissal without fault under any of the following circumstances, the employer may terminate the labor contract after giving thirty days' notice in writing to the worker or after paying the worker an additional one month's wages:
(1) If the worker is ill or injured not due to work, and is unable to engage in the original work after the expiration of the prescribed medical treatment period, or is unable to engage in the work that has been arranged by the employer;
(2) The worker is unable to engage in the original work or in the work that has been arranged by the employer; or
(2) the worker is unable to perform his/her job, and he/she is still unable to perform his/her job after training or adjusting his/her job position;
(3) the objective circumstances under which the labor contract was concluded have changed significantly, making it impossible to perform the labor contract, and the employer and the worker fail to reach an agreement to change the content of the labor contract after negotiation.
Article 41: In the event of economic layoffs under one of the following circumstances, where there is a need to lay off more than twenty persons or less than twenty persons, but more than ten percent of the total number of employees of the enterprise, the employer shall explain the situation to the labor union or all the employees thirty days in advance, and after listening to the opinions of the labor union or the employees, the plan for the layoff of the employees may be made after the layoff plan has been reported to the administrative department of labor:
(1) The enterprise is undergoing restructuring in accordance with the provisions of the Law on Bankruptcy of the Enterprise. (a) Reorganization in accordance with the provisions of the Law on Bankruptcy of Enterprises;
(b) Serious difficulties in production and operation;
(c) Reorganization of the enterprise, major technological innovation or adjustment of the mode of operation, and the need to reduce the number of personnel after changing the labor contract;
(d) Any other significant changes in the objective economic situation on which the labor contract is based, which makes it impossible to fulfill the labor contract. (d) Other cases in which the labor contract cannot be fulfilled due to significant changes in the objective economic circumstances on which it was concluded.
When reducing the number of employees, priority shall be given to retaining the following persons:
(1) those who have entered into a fixed-term labor contract with the employer for a longer period of time;
(2) those who have entered into an open-ended labor contract with the employer;
(3) those who do not have any other employed members of their families, and those who have elderly people or minors who need to be supported.
If an employer reduces its workforce in accordance with the provisions of paragraph 1 of this Article and re-employs personnel within six months, it shall notify the personnel who have been laid off and give priority to the personnel who have been laid off under the same conditions.
Article 42 Circumstances under which an Employer May Not Terminate an Employment Contract An employer may not terminate an employment contract in accordance with the provisions of Articles 40 and 41 of this Law if any of the following circumstances applies to a worker:
(1) If a worker engaged in an operation exposed to the hazards of occupational diseases does not undergo a pre-departure occupational health examination, or if a patient suspected of having occupational diseases is under diagnosis or under medical observation;<
(2) workers who have suffered from occupational diseases or work-related injuries and have been recognized as having lost or partially lost their labor capacity;
(3) workers who are sick or injured not due to work, and are under the prescribed medical treatment period;
(4) female workers during pregnancy, childbirth, or breastfeeding;
(5) workers who have worked continuously in the work unit for fifteen years and are less than five years away from the legal retirement age;
(6) workers who have worked continuously for more than fifteen years in the work unit and are not yet ready to leave work; and (vi) Other cases stipulated by laws and administrative regulations.
Article 43 Supervisory Role of Trade Unions in the Termination of Labor Contracts When an employer unilaterally terminates a labor contract, it shall notify the trade union of the reasons in advance. Where the employer violates the provisions of laws and administrative regulations or the agreement of the labor contract, the trade union shall have the right to request the employer to rectify the situation. The employer shall study the views of the labor union and notify the labor union in writing of the results.
Article 44 Termination of Labor Contracts A labor contract shall be terminated under any of the following circumstances:
(1) when the term of the labor contract expires;
(2) when the worker begins to enjoy basic pension insurance benefits in accordance with law;
(3) when the worker dies, or is declared dead or missing by a people's court;
(4) when the The employer is declared bankrupt according to law;
(e) The employer's business license is revoked, ordered to close down or revoked, or the employer decides to be dissolved early;
(f) Other cases stipulated by laws and administrative regulations.
Article 45 Late Termination of Labor Contracts Where the term of a labor contract expires and there is one of the circumstances provided for in Article 42 of this Law, the labor contract shall be renewed and terminated when the corresponding circumstances disappear. However, the termination of the labor contract of a worker who has lost or partially lost his or her ability to work as stipulated in Item 2 of Article 42 of this Law shall be carried out in accordance with the provisions of the State on work-related injury insurance.
Article 46 Economic Compensation The employer shall pay economic compensation to a worker under one of the following circumstances:
(1) if the worker terminates the labor contract in accordance with the provisions of Article 38 of this Law;
(2) if the employer proposes the termination of the labor contract to the worker in accordance with the provisions of Article 36 of this Law, and terminates the labor contract by mutual consent of the worker;
(3) if the employer proposes the termination of the labor contract to the worker in accordance with the provisions of Article 36 of this Law; and p>
(3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law;
(4) The employer terminates the labor contract in accordance with the provisions of the first paragraph of Article 41 of this Law;
(5) In addition to the case in which the employer maintains or raises the terms and conditions for the renewal of the labor contract, and the laborer does not agree to the renewal of the labor contract, the termination of a fixed-term labor contract is carried out in accordance with the provisions of the first subparagraph of Article 44 of this Law (f) Termination of a fixed-term labor contract in accordance with the provisions of the fourth and fifth subparagraphs of Article 44 of this Law;
(g) Other cases stipulated by laws and administrative regulations.
Article 47 Calculation of Economic CompensationEconomic compensation shall be paid to the laborer at the rate of one month's salary for each full year of employment with the employer. If the period of employment is more than six months but less than one year, it shall be calculated on the basis of one year; if it is less than six months, the economic compensation shall be paid to the laborer at the rate of half a month's salary.
If the worker's monthly wage is higher than three times the average monthly wage of the workers in the region for the previous year as announced by the people's government of the municipality directly under the central government or the municipal people's government of the district in which the employing unit is located, the standard of economic compensation payable to the worker shall be at the rate of three times the average monthly wage of the workers, and the maximum number of years for which economic compensation shall be payable to the worker shall be not more than twelve years.
The monthly wage referred to in this Article refers to the average wage of the worker in the twelve months prior to the dissolution or termination of the labor contract.
Article 48 Legal Consequences of Unlawful Termination of Employment Contracts Where an employer terminates or suspends an employment contract in violation of the provisions of this Law, and the worker requests the continuation of the employment contract, the employer shall continue to perform the contract; and where the worker does not request the continuation of the employment contract or where the contract can no longer be continued, the employer shall pay compensation in accordance with the provisions of Article 87 of this Law.
Article 49 Transfer and Continuation of Social Insurance Relationships Across RegionsThe State takes measures to establish a sound system for the transfer and continuation of workers' social insurance relationships across regions.
Article 50 Obligations of Both Parties Upon Termination of Labor Contracts The employer shall, upon termination of a labor contract, issue a certificate of the termination of the labor contract, and shall within fifteen days carry out the formalities of transferring the files and social insurance relations of the worker.
The laborer shall, in accordance with the agreement of both parties, handle the handover of work. If the employer shall pay economic compensation to the laborer in accordance with the relevant provisions of this Law, it shall be paid at the time of completing the handover of work.
The employer shall keep the text of the canceled or terminated labor contract for at least two years for inspection.