What are the requirements for terminating an employee? Conditions for dismissal of an employee

How to terminate an employee, and what should I pay attention to?

Legal Analysis:1During the probationary period, it is proved that they do not meet the employment requirements; 2.

Serious violation of the rules and regulations of the employer; 3.Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer; 4.The employee 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.

Those who have been pursued for criminal responsibility in accordance with law; 6.There is a dispute over the invalidity or partial invalidity of the labor contract.

Legal basis: 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 26 The following labor contracts are invalid or partially invalid:

1) Using fraud, coercion or taking advantage of the danger of others to cause the other party to conclude or modify a labor contract contrary to its true intentions;

2) The employer exempts itself from statutory liability and excludes the rights of employees;

3) Violating mandatory provisions of laws or administrative regulations.

If there is a dispute over the invalidity or partial invalidity of the labor contract, it shall be confirmed by the labor dispute arbitration institution or the people's court.

The employer may dismiss an employee for violating discipline, but according to the relevant provisions of the Labor Contract Law, if the employer terminates the labor contract by evaluating the employee's serious violation of labor discipline or the rules and regulations of the employer, the employer must meet the following three conditions:

1) There are detailed provisions on the violation of discipline and dereliction of duty of employees in the labor discipline or rules and regulations, and the procedures for formulating labor discipline or rules and regulations are in accordance with the national laws, administrative regulations and policies before the return of the register, and have been publicized to the workers. That is, the express provisions of Article 4 of the Labor Contract Law.

2) The employee's disciplinary violation is consistent with the provisions of labor discipline or rules and regulations, and there is original recorded evidence of violation of discipline or dereliction of duty at the time of the world.

3) If the rules and regulations stipulate the procedures for dealing with the employee's disciplinary violations, they must be dealt with in accordance with the prescribed procedures and have corresponding evidence.

1. The difference between dismissal and dismissal.

Dismissal is often the termination of the employment relationship due to personal reasons on the part of the employee;

Dismissal is an act of dismissal by an employer, which refers to a compulsory measure taken by an employer to terminate the labor relationship with an employee for some reason.

Dismissal can be divided into disciplinary dismissal and normal dismissal according to different reasons. Dismissal for violation of discipline refers to an administrative measure taken by an employer to forcibly terminate the labor relationship in accordance with the law against an employee who has seriously violated labor discipline or the internal rules of the enterprise, but has not reached the level of dismissal or removal. Normal dismissal refers to a measure taken by an employer to terminate the labor relationship with an employee in accordance with the production and operation conditions and the situation of the employees, and in accordance with the national and local policies and regulations on changing the operating mechanism of the enterprise and resettling redundant personnel in the course of reform.

2. Can an employee be compensated for being dismissed?

If the company dismisses an employee not due to reasons attributable to the employee, it shall notify the employee 30 days in advance and give him or her economic compensation. The following cases are included:

1) The worker is sick or injured not due to work, and cannot engage in the original job after the expiration of the medical treatment period, nor can he engage in the work arranged by the employer separately, or does not comply with the provisions of the state and the city for engaging in relevant industries and types of work, and the employer cannot arrange another job.

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 original labor contract, and the parties cannot reach an agreement on changing the labor contract through consultation.

The calculation standard refers to the average monthly wage of the employee in the 12 months before the termination of the contract under the normal production conditions of the enterprise. If the average monthly wage of a worker is lower than the average monthly wage of the enterprise, the employee shall be paid according to the standard of the average monthly wage of the enterprise.

On the issue of dismissal. Companies tend to make dismissal decisions and dismissals based on the employee's personal reasons, which are based on the employee's poor performance, fault, and incompetence to do the job. The enterprise that carries out such dismissal should provide clear and genuine reasons, otherwise it is an abuse of the right to dismissal.

2. Whether or not all dismissals due to personal reasons are justified is based on serious facts that can be proved, and cannot be based on personal impressions and subjective judgments.

3. Whether the enterprise makes a specific analysis based on the consequences and impact of the incident, and makes a decision after considering the normal operation of the enterprise and the actual responsibilities of employees. Dismissal should be an unavoidable solution.

Dismissal for personal reasons does not require proof of fault on the part of the employee. Incompetence and frequent absences from work can also be grounds for terminating a work contract. However, unexcused absences, negligence and work mistakes that do not cause serious consequences should be treated as simple faults and should not be used as a reason to dismiss employees.

1. What is the compensation standard for the company's dismissal of employees?

Article 41 of the Labor Contract Law: In any of the following circumstances, if it is necessary to lay off more than 20 employees or less than 20 employees 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 layoff plan may be reported 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, or 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.

Article 47 of the Labor Contract Law: Economic compensation shall be paid to the employee according to the number of years of service in the employer 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 of severance shall be paid to him at the rate of three times the average monthly wage of the employee, and the maximum period of payment of severance shall not exceed 12 years.

The term "monthly wage" mentioned in this article refers to the average salary of an employee in the 12 months prior to the termination or dissolution of the labor contract.

According to the Labor Contract Law, the circumstances under which an employer legally terminates an employment contract include faulty dismissal and no-fault dismissal.

1. Faulty dismissal: Article 39 of the Labor Contract Law stipulates that 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 employment conditions during the probationary period;

2) Serious violation of the rules and regulations of the employer; Type leather.

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

4) The employee 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 after being proposed by the employer;

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 investigated for criminal responsibility in accordance with law.

2. No-fault dismissal: Article 40 of the Labor Contract Law stipulates that 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 not competent 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.

Article 41 of the Labor Law of the People's Republic of China stipulates that due to the needs of production and operation, an employer may extend its working hours after consultation with the labor union and the workers, and generally shall not exceed one hour per day; If it is necessary to extend the working hours due to special reasons, the extended working hours shall not exceed three hours per day under the condition of ensuring the health of the workers, but shall not exceed thirty-six hours per month.

How to terminate an employee, and what should I pay attention to?

Reason with him seriously and politely, understand his feelings, as migrant workers, they are not easy, forgive him! Thank you.

How to terminate an employee, and what should I pay attention to?

There are two ways: legal reasons for not paying compensation, and legal dismissal for no reason.

Violating the company's regulations, causing losses to the company, and failing to meet the company's required performance

Employees can be dismissed, but financial compensation is generally required.

1. Employees need to be dismissed due to poor performance.

1. You may seek help from your direct supervisor, because your supervisor knows the employee's performance best and has the most right to speak. If possible, you can also let her join her. Of course, it is important to prepare a track record in advance to make the conversation more convincing. This is to convince people with reason.

2. It is necessary to seek a legal basis to give certain compensation according to the provisions of the labor contract, and give one month's salary compensation for each year of service. And you can discuss it with the general manager or business manager to give more. This is to treat people with the law.