Cancellation of position, how to negotiate with the employee to terminate the contract

If you don't have to, just rearrange your position.

If the employee's position is cancelled due to business adjustment, institutional integration, or other reasons attributable to the employer, the employer shall pay attention to the following points in the actual operation process:

There should be a reasonable basis for the cancellation of the post. As the saying goes, reason goes all over the world, and unreasonable is hard to move. For a normal operating employer, there must be certain reasons for the cancellation of positions, which are usually inevitable in the company's operation process, such as the adjustment of the company's business, the integration of institutions, etc., which leads to the increase or decrease of some jobs.

Therefore, when applying this reason, the employer must provide the necessary evidence to prove the reasonableness of the job cancellation.

The cancellation of the position does not necessarily lead to the termination of the employment relationship. In many areas of practice, there are many employers who will directly issue a notice of termination to the employee after the job is cancelled. This may be quite reasonable, but it is not legal from the point of view of the law.

This is because the Employment Contract Law sets strict procedural requirements for the application of this situation, i.e., negotiation.

After the job is cancelled, the employee should also be consulted. Although the job position at the time of signing the employment contract has been abolished, the law stipulates that the employer has the obligation to negotiate with the employee, and the content of the negotiation is mainly about the change of the content of the employment contract. This negotiation can be a change of position or a negotiation between the two parties on the termination of the contract, but regardless of the content, the negotiation is a necessary stage and process prescribed by law.

In addition, regardless of whether the negotiation is reached or not, the employer needs to keep certain evidence to prove that the negotiation with the employee has indeed been conducted.

Before unilaterally terminating a labor contract, the employer shall notify the labor union of the reasons for the termination. Article 43 of the Labor Contract Law stipulates that an employer shall notify the labor union of the reasons for unilateral termination of the labor contract in advance. This is something that many employers often overlook, and many employers do not even have a trade union.

However, the absence of a trade union does not exempt the employer from the obligation to notify, and there have been cases in judicial practice where the termination act is illegal due to failure to notify the trade union. Therefore, employers should pay special attention when exercising the right of unilateral termination.

Legal Analysis: If the employer and the employee negotiate to terminate the labor contract, and the employee does not agree, the employer may terminate the labor contract with the employee and pay severance if there is a legitimate reason. The labor contract between the two parties shall not be terminated at will without lawful reasons.

Legal basis: Article 38 of the Labor Contract Law of the People's Republic of China An employee may terminate a labor contract if the employer falls under any of the following circumstances:

1) Failure to provide labor protection or working conditions in accordance with the provisions of the labor contract;

2) Failure to pay labor remuneration in full and in a timely manner;

3) Failure to pay social insurance premiums for workers in accordance with the law;

4) The rules and regulations of the employer violate the provisions of laws and regulations and harm the rights and interests of workers;

5) The labor contract is invalid due to the circumstances specified in the first paragraph of Article 26 of this Law;

6) Other circumstances under which the labor contract may be terminated by laws and administrative regulations. If an employer forces an employee to work by means of violence, threats or illegal restriction of personal freedom, or if the employer directs or forces the employee to perform risky work in violation of rules and regulations and endangers the employee's personal safety, the employee may immediately terminate the labor contract without prior notice to the employer.

Whether an employee should obey the employee when the post is cancelled or the employer adjusts the position depends on the provisions of the labor contract and the regulations of the relevant local authorities. If the post adjustment is in accordance with the provisions of the labor contract, the employee shall obey it; If the labor contract is not clear, but the local competent authority stipulates that the employer's adjustment method is in line with the autonomy of the employee, the employee shall obey it. If the post adjustment does not conform to the provisions of the labor contract and does not fall within the scope of the autonomy of local employment, the employer shall negotiate and reach an agreement with the employee to sign a letter of change of labor contract, and the employee shall continue to perform the contract in the new position.

No agreement can be reached.

It shall be in accordance with the provisions of Article 46, Paragraph 3 and Article 37 of the Labor Contract Law. Terminate the contract by giving 30 days' written notice to the employee or paying an additional month's salary. Article 40 In any of the following circumstances, the employer may terminate the labor contract after giving 30 days' written notice to the worker or paying the worker an additional month's salary:

Where there is a major change in the objective conditions for concluding a labor contract, 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 22 of the Symposium on Several Issues Concerning the Trial of Labor and Personnel Dispute Cases Requires Employers to Adjust the Jobs of Laborers. If the following conditions are met, it shall be deemed that the employer exercises its right to employ employment in accordance with the law. If an employee requests to terminate the labor contract and pay economic compensation on the grounds that the employer has adjusted the job position without authorization, it will not be supported

The adjustment of workers' jobs is the need of the employer's production and operation; After the job adjustment, the wage level of employees is basically the same as that of the original post.

Not insulting, punitive. There are no other violations of laws and regulations. I hope mine can help you, and I hope you can help me**, like, support me, and pay more attention to me.

You should have a good talk with the employee, so that the employee can accept or transfer him.

At this time, you can talk to the employee, and then understand his thoughts, if he doesn't like this position, you can transfer him to a better boring position at this time.

It is not in accordance with the law and is very unfair to the workers that they can find relevant arbitration institutions for arbitration.

Legal analysis: The revocation of the post is a major change in the objective situation, and the contract can be terminated, but the employee must be financially compensated.

Legal basis: Article 40, Paragraph 3 of the Labor Contract Law of the People's Republic of China If there is a major change in the objective circumstances on which the labor contract is concluded, resulting in the inability 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, 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.

The steps required for the company to terminate the contract with the employee: arrange the employee to handle the work handover; After the handover is completed, settle and pay the employee's salary, economic compensation or compensation; Issue a certificate of termination of the labor contract, and complete the formalities for the transfer of files and social insurance relations for the employee within 15 days.

1. How to handle the dismissal procedures.

Procedures for dismissing employees: 1. Notify the dismissed employees; 2. Explain the reasons for dismissal; 3. Handle resignation procedures and work handover for the dismissed employees. The employer shall issue a certificate of dissolution or termination of the labor contract when dissolving or terminating the labor contract, and shall go through the formalities for the transfer of the file and social insurance relationship for the employee's grandson within 15 days.

2. When will the compensation for termination of the contract be paid?

Compensation for termination of the contract by agreement: Generally, after the termination of the labor contract, the compensation shall be paid after the termination of the labor contract and the resignation formalities are completed;

The employer shall issue a certificate of dissolution or termination of the labor contract when the labor contract is dissolved or terminated, and complete the formalities for the transfer of the employee's file and social insurance relationship within 15 days.

Legal basis] According to Article 50 of the Labor Contract Law, the employer shall issue a certificate of dissolution or termination of the labor contract when dissolving or terminating the labor contract, and complete the formalities for the transfer of the employee's file and social insurance relationship within 15 days.

The worker shall handle the handover of work in accordance with the agreement between the two parties. Where an employer shall pay economic compensation to an employee in accordance with the relevant provisions of this Law, it shall do so at the time of completion of the work handover.

3. What are the conditions for the termination of the labor contract agreed by both parties.

1. Procedures for terminating the labor contract by mutual agreement between the two parties 1. Proposal for termination of the labor contract: Both the company and the employee have the right to terminate the labor contract; 2. Reach an agreement: the two parties reach an agreement on the basis of voluntary and equal consultation; 3. Notify the trade union; 4. Handle the handover of work, and the personnel department of the company will arrange relevant employees to handle the handover of work; 5. Settlement of salary and economic compensation; 6. Termination of labor contract:

After the above process is completed, the labor contract shall be terminated as agreed by both parties; 7. To serve the decision to terminate the labor contract on the counterpart (employee), direct (special mail or express mail), or even newspaper or announcement service, etc., may be considered to handle the above service matters in a notarized manner if necessary, so as to ensure that the service issue is foolproof. 8. Issuance of resignation certificate: When the labor contract is terminated, the personnel department will issue a certificate of termination of the labor contract, and handle the transfer procedures of file and social insurance relationship for the employee; 9. Filing:

The original text of the termination of the labor contract, the original electronic file, and the evidence of the employee's violation of labor discipline shall be archived and kept for at least two years.

Legal analysis: The revocation of the post is a major change in the objective situation, and the contract can be terminated, but the employee must be compensated for economic compensation.

Legal basis: Paragraph 3 of Article 40 of the Labor Contract Law of the People's Republic of China If there is a major change in the objective circumstances on which the labor contract is concluded, resulting in the inability to perform the labor contract as soon as possible, and the employer fails to reach an agreement on changing the content of the labor contract after consultation between the employer and the employee, 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.

Legal analysis: 1. The employee submits a written application for the termination of the labor contract through negotiation. 2. Prepare an agreement on the termination of the labor contract according to the content of the negotiation between the two parties.

3. Clearly stipulate the deadline for social security payment and the time for social security transfer and file transfer. 4. Do a good job of handing over and signing for work and items. 5. Clarify whether there are other unresolved labor disputes between the two parties.

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 may terminate a labor contract by notifying the employer in writing 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probationary period.