Whether the company has the right to unconditionally dismiss an older employee

Hello, after working for ten years, if the employee proposes to renew the labor contract, then the labor contract should be concluded with an indefinite term. If you are dismissed, you will be deemed to have terminated the contract illegally, and you will be required to pay compensation.

1. Whether an employee can be dismissed or not depends on whether the employee has violated the provisions of the labor law and relevant national laws, and if the employee has seriously violated the labor law, the employer can still dismiss him.

2. According to Article 42 of the Labor Contract Law, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law if the employee falls under any of the following circumstances:

1) Workers engaged in operations that expose occupational disease hazards have not undergone a pre-departure occupational health examination, or are suspected of being an occupational disease patient during the period of diagnosis or medical observation;

2. Suffering from an occupational disease or being injured at work in the unit and being confirmed to have lost or partially lost the ability to work;

3) Illness or non-work-related injury, within the prescribed medical treatment period;

4) Female employees are pregnant, giving birth, or breastfeeding;

5) Those who have worked in the unit for 15 consecutive years and are less than five years away from the statutory retirement age;

6) Other circumstances provided for by laws and administrative regulations.

The above are special circumstances, and the employer generally does not have the right to dismiss;

Except in the following circumstances, an enterprise shall pay economic compensation or compensation for illegal dismissal if an employee is dismissed (regardless of age): (1) it is proved that he does not meet the employment conditions 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 harm to the employer; (4) The worker establishes labor relations with other employers at the same time, which has 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 (where the labor contract is concluded by fraud and coercion); (6) Those who have been pursued for criminal responsibility in accordance with law.

If the employee has reached retirement age, the employment contract between the employee and the employer will be terminated by itself. If the employee is only older and has not reached the retirement age, the company has no right to unconditionally dismiss the employee.

If it is a serious violation of discipline by an employee, the company can dismiss the employee regardless of the employee's situation.

There are cases where it is protected if it is not a serious disciplinary violation, such as in the case of redundancy.

Under normal circumstances, employees cannot be dismissed regardless of how long they have worked, but in the event of economic layoffs, employees who have worked in the unit for 15 consecutive years and are less than five years away from the statutory retirement age shall not be dismissed.

Labor Contract Law

Article 41: [Economic Layoffs] In any of the following circumstances, where it is necessary to lay off 20 or more employees or less than 20 but accounting for more than 10% of the total number of employees of the enterprise, the employer shall explain the situation to the trade union or all employees 30 days in advance, and after listening to the opinions of the trade union or employees, the personnel reduction plan may be reduced after reporting to the labor administrative department:

1) Reorganization is carried out in accordance with the provisions of the Enterprise Bankruptcy Law;

2) Serious difficulties occur in production and operation;

3) The enterprise still needs to lay off personnel after changing the labor contract, after changing the labor contract;

4) Other situations where the labor contract cannot be performed due to major changes in the objective economic conditions on which the labor contract is based.

When reducing personnel, priority shall be given to retaining the following personnel:

1) Entering into a fixed-term labor contract with the unit for a longer period of time;

2) Entering into an indefinite labor contract with the unit;

3) There are no other employed persons in the family, and there are elderly or minors who need to be supported.

Article 42 [Circumstances under which an employer may not terminate a labor contract] Under any of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law:

5) Those who have worked in the unit for 15 consecutive years and are less than five years away from the statutory retirement age;

Article 87.

If an employer dissolves or terminates a labor contract in violation of the provisions of this Law, it shall pay compensation to the employee in accordance with twice the standard of economic compensation provided for in Article 47 of this Law.

There are many reasons for dismissing employees, there is no age limit, old employees will be fired if they make mistakes, and new employees will be left if they are super strong, which is the normal flow of personnel in the company.

There is no age limit for the compensation of the dismissed employee by the employer, but there is a provision on the number of years of compensation when the monthly salary of the dismissed employee is three times higher than the average salary of the place where the employee is dismissed.

That is, the following provisions of the Labor Contract Law:

Article 47 Economic compensation shall be paid to the worker according to the number of years he or she has worked in the unit and one month's salary for each full year. where it is more than six months but less than one year, it is calculated as one year; If it is less than six months, the worker shall be paid half a month's salary.

If the monthly wage of a worker is three times higher than the average monthly wage of the employee in the previous year announced by the people of the municipality directly under the Central Government or the city divided into districts where the employer is located, the standard for paying economic compensation to him shall be three times the average monthly wage of the employee, and the maximum number of years for which economic compensation is paid shall not exceed 12 years.

The term "monthly wage" as used in this article refers to the average wage of the worker in the 12 months prior to the termination or dissolution of the labor contract.

The compensation for dismissal of an employee by an employer is limited to the statutory retirement age. If a retired employee who has already traveled to the mainland goes to work again, the current labor law of our country does not apply.

When an employee reaches the retirement age during the term of the employment contract, can the employer dismiss the employee who has reached the retirement age during the employment contract? The following has been compiled for you to answer, I hope it will be helpful to you. Article 21 of the Regulations for the Implementation of the Labor Contract Law stipulates that the labor contract shall be terminated if the employee reaches the statutory retirement age.

However, according to the legal principles of the Labor Law, this article gives the employee the basis for claiming the right to retire and enjoy "retirement benefits" at the age of retirement, and on the other hand, gives the employer the personnel autonomy to prevent the retiree from "occupying" and not retiring at the age of retirement. It can be seen that both the employer and the employee have both rights and obligations. If the employer is willing to take the initiative to fulfill its obligations and waive the employee's right to retire according to his or her age, and the employee does not blindly claim the right to retire, the law should maintain the validity of the employment contract between the two parties.

At the same time, Article 7 of the Interpretation (III) of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases stipulates that: "If an employer files a lawsuit with the people's court in the event of an employment dispute between an employer and a person who has been entitled to pension insurance benefits or receives a pension in accordance with the law, the people's court shall handle it in accordance with the labor relationship." Article 39 of the Labor Contract Law [Unilateral Termination of Labor Contract by Employer (Fault Dismissal)] The employer may terminate the labor contract if the employee 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 harm 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 unit, or refuses to make corrections after being proposed by the employer; (5) The labor contract is invalid due to the circumstances provided for 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 [No-Fault Dismissal] In 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 the 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 you have more questions in this regard, welcome to consult, provide professional legal advice services, and a professional team of lawyers will answer your doubts.

One month's written notice shall be issued, and then one month's salary shall be paid to the employee for each year of work in your company, and the compensation standard shall be the average of the employee's salary in the previous 12 months, but if the employee meets the requirements of Article 42 of the Labor Contract Law of the People's Republic of China, he shall not be dismissed.

In any of the following circumstances, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law:

1) Workers engaged in operations that expose occupational disease hazards have not undergone a pre-departure occupational health examination, or are suspected of being an occupational disease patient during the period of diagnosis or medical observation;

2. Suffering from an occupational disease or being injured at work in the unit and being confirmed to have lost or partially lost the ability to work;

3) Illness or non-work-related injury, within the prescribed medical treatment period;

4) Female employees are pregnant, giving birth, or breastfeeding;

5) Those who have worked in the unit for 15 consecutive years and are less than five years away from the statutory retirement age;

6) Other circumstances provided for by laws and administrative regulations on rapid leasing.

1. The unit shall not dismiss an employee who has worked in the unit for 15 consecutive years and is less than five years away from the statutory retirement age. 2. According to the provisions of the Labor Contract Law, the employer shall not terminate the labor contract if the employee falls under any of the following circumstances: (1) the worker who is engaged in work that is exposed to occupational disease hazards has not undergone a pre-departure occupational health examination, or the suspected occupational disease patient is in the period of diagnosis or medical observation; 2. Suffering from an occupational disease or being injured at work in the unit and being confirmed to have lost or partially lost the ability to work; 3) Illness or non-work-related injury, within the prescribed medical treatment period; 4) Female employees are pregnant, giving birth, or breastfeeding; 5) Those who have worked in the unit for 15 consecutive years and are less than five years away from the statutory retirement age; 6) Other circumstances provided for by laws and administrative regulations.

The provisions of the Labor Law on the dismissal of over-age employees are also in violation of the provisions of the Labor Contract Law of China, because for those who have exceeded a certain age, they should be handled in accordance with the retirement procedures, and the illegal dismissal is mainly manifested in three categories.

1. The factual basis for dismissal of employees is insufficient.

2. The legal basis for dismissal of employees is inaccurate.

3. The operating procedures for dismissing employees are illegal.

The above three illegal dismissals often bring huge legal risks to the company's operation and management.

According to the provisions of the current Labor Law, the termination of a labor contract can be divided into the following three situations:

1. The two parties agree to terminate the labor contract.

According to Article 24 of the Labor Law, the parties to an employment contract may terminate the labor contract if they reach a consensus through consultation, in which case the labor contract may be terminated regardless of the reason for the termination, as long as both parties reach a consensus through consultation.

2. There are three types of unilateral termination of labor contracts by employers.

1) The employer terminates the labor contract at any time.

According to Article 25 of the Labor Law, the employer may terminate the labor contract:

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

2) Serious violation of labor discipline or the rules and regulations of the employer;

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

4) Those who have been investigated for criminal responsibility in accordance with law.

2) The employer needs to give the employee 30 days' written notice before terminating the labor contract.

According to Article 26 of the Labor Law, the employer may terminate the labor contract under any of the following circumstances, but shall notify the employee in writing 30 days in advance:

1) The worker is sick or injured not due to work, and after the expiration of the medical treatment period, he is unable to engage in the original job or the work arranged by the employer;

2) The worker is not competent for the job, and is still incompetent for the job after training or job adjustment; Know.

3) There is a major change in the objective circumstances on which the labor contract was concluded, making it impossible to perform the original labor contract, and the parties cannot reach an agreement on the modification of the labor contract after negotiation.