Is it legal to fire an employee like this, and how is it legal for a company to fire an employee

1. There is no such thing as dismissal, only the termination of the labor contract. However, the termination of the labor contract must be in writing, and the termination of the labor contract by the enterprise in the form of oral notification is invalid.

2. The termination of the contract between the enterprise and the employee must be permitted by law, otherwise the enterprise needs to pay compensation.

3. Generally speaking, taking leave is not a condition for an enterprise to terminate the contract. Under special circumstances, even if the enterprise terminates the contract, it must prove that the act meets the criteria for terminating the contract in the law or enterprise system, and if the enterprise cannot prove this, then it is invalid.

4. Enterprises may say that there are provisions in the employee handbook or system. However, according to the law, the employee handbook or related system must ensure that the procedures are legal before it can be binding on employees, and the results can be supported by law. To put it simply, if the company's employee handbook or system is not publicized to the employee, it cannot prove that the employee knows and understands the relevant system, and the enterprise cannot punish the employee for this.

In summary, the dismissal of the enterprise in this way of conveyance is invalid, and in addition, the enterprise cannot fire the employee on the grounds of leave.

Countermeasures: 1. In the case of ineffective communication, send EMS express to the enterprise, and write "XX does not agree with the company's dismissal and requires a statement of resumption of work" on the cover of the express, which writes that it disagrees with the decision to dismiss the employee and requires the company to withdraw the decision. The express bill must be retained.

2. Collect other evidence of working in the company, such as salary slips, colleague certificates, etc. However, the employee's wife cannot be a witness because she is a party of interest.

3. If the enterprise does not agree to resume work and has evidence, go to the labor and social security department to complain, and the content of the complaint is that the enterprise illegally terminates the contract and asks for compensation.

4. You did not mention whether the enterprise has signed a labor contract with the employee, if not, then appeal together and ask the enterprise to pay compensation for not signing the labor contract.

Some units do not allow substitute leave, and there are many reasons why the unit wants to fire people.

If the employee is unable to work for a period of time other than due to work-related injury or illness, or is proved to be ineligible for employment during the probationary period, or if the employee is incompetent for the job, and is still incompetent for the job after training or job adjustment, or violates laws and regulations, the employer may terminate the labor contract in accordance with the relevant laws and regulations.

And if an employee is fired for violating laws and regulations, there is generally no financial compensation.

However, if the employer dismisses an employee on the grounds of violating the rules and regulations, it should be fair, reasonable, reasonable, and not arbitrary, and if the party concerned feels that it is unreasonable, he should be given the opportunity to appeal.

As for whether there is compensation for the termination of the labor contract, it should be determined according to the actual situation of the parties. Generally speaking, compensation should be given except for violations of law and discipline.

In accordance with the provisions of the Labor Contract Law of the People's Republic of China.

Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request;

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

6) Those who have been pursued for criminal responsibility in accordance with law.

Article 40 Under any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary:

1) The worker is sick or injured not due to work, and is unable to perform his original job or work arranged by the employer after the prescribed medical treatment period has expired;

2) The worker is incompetent for the job, and is still incompetent for the job after training or job adjustment;

3) There is a major change in the objective circumstances on which the labor contract was concluded, making it impossible to perform the labor contract, and the employer and the employee fail to reach an agreement on changing the content of the labor contract after consultation.

If it is not legal, you should refer to the specific law.

Legal Analysis: The circumstances under which an enterprise legally dismisses an employee are as follows:

1) During the probationary period, it is proved that they do not meet the employment requirements;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer's lead;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request;

Legal basis: Labor Contract Law of the People's Republic of China

Article 36 The employer and the worker may terminate the labor contract if they reach a consensus through consultation.

Article 37 A worker shall notify the employer in writing 30 days in advance that the labor contract may be terminated. The employee may terminate the labor contract by notifying the employer three days in advance during the probationary period.

Legal Analysis: Employees who violate the law cannot be fired. If an employee is investigated for criminal liability, the employer may terminate the labor contract with the employee.

Being investigated for criminal responsibility refers to those who have been sentenced to criminal punishment by the court, including being sentenced to controlled release, short-term detention, fixed-term imprisonment and suspended sentence, life imprisonment, death penalty, suspended sentence, etc. The employer cannot dismiss the employee casually, and the dismissal must be clear and justifiable, such as the dismissal in accordance with the circumstances prescribed by law, or in accordance with the rules and regulations formulated by the employer through democratic procedures, or in accordance with the provisions of the labor contract.

Legal basis: Article 39 of the Labor Contract Law of the People's Republic of China The employer may terminate the labor contract if the employee falls under any of the following circumstances:

1) It is proved that they do not meet the requirements for employment during the probationary period;

2) Seriously violating the rules and regulations of the employer;

3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;

4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections upon the employer's request;

5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;

6) Those who have been pursued for criminal responsibility in accordance with law.

Legal analysis: An employer cannot dismiss an employee casually, and the dismissal must have a legitimate reason, such as the dismissal in accordance with the circumstances prescribed by law, or in accordance with the rules and regulations formulated by the employer through democratic procedures, or in accordance with the provisions of the labor contract. Otherwise, the labor contract is terminated illegally, and the employee may apply for labor arbitration to demand continued performance of the labor contract or to pay compensation.

Legal basis: Article 119 of the Civil Procedure Law of the People's Republic of China Article 119 A lawsuit must meet the following conditions:

1) The plaintiff is a citizen, legal person, or other organization that has a direct interest in the case;

2) There is a clear defendant;

3) There are specific litigation claims, facts, and reasons;

4) It is within the scope of the people's court's civil litigation and the jurisdiction of the people's court receiving the lawsuit.

Illegal. During the performance of the labor contract, the employer terminates the labor contract in the following three situations:

1. If the employee is at fault due to the law, the employer shall terminate the contract in accordance with Article 39 of the Labor Contract Law without compensation. If the employer suffers losses, the employer may claim compensation for part of the losses.

2. If the worker is not legally at fault, the employer shall pay severance to the worker, and if the worker is not legally at fault, the employer may terminate the contract in accordance with Articles 36, 40, 41 and 42 of the Labor Contract Law, but shall pay one month's salary severance for each year according to the employee's years of service in the employer, one year if the employee has completed six months but less than one year, and six months if he has less than half a year. Among them, if the labor contract is terminated in accordance with the provisions of Article 40, one month's written notice shall be given in advance or an additional month's salary in lieu of notice shall be paid.

The wages for calculating severance payments shall be calculated on the basis of the average wages due to the employee in the 12 months prior to the termination of the contract, including hourly wages, piece-rate wages, various subsidies and allowances, overtime wages, bonuses and wages paid under special circumstances. If the salary is higher than 3 times the average wage of local employees, it shall be calculated at 3 times the average salary of local employees, and if it is lower than the local minimum wage standard, it shall be calculated according to the local minimum wage standard.

3. If the employer terminates the contract in violation of the law, it shall pay compensation, and if the termination of the contract by the employer does not comply with the provisions of the law, and the employee requests to continue to perform the labor contract, the employer shall continue to perform the contract; If the employee does not request to continue to perform the labor contract or the employer is no longer able to continue to perform the labor contract, the employer shall pay compensation at twice the amount of the severance payment.