How to determine the illegal termination of labor relations in China

Restructuring, Alteration, Termination] Notice of the Ministry of Labor on Issues Concerning the Performance of Labor Contracts in the Implementation of the Joint-stock System and the Transformation of the Joint-stock Cooperative System by Enterprises (No. 34 of 1998) stipulates that in the process of implementing the shareholding system or joint-stock cooperative system transformation of an enterprise, if the employee cannot reach an agreement on changing the labor contract through consultation, it may be in accordance with Article 26, Paragraph 3 of the Labor Law (the objective circumstances on which the labor contract is based have changed significantly, resulting in the inability to perform the original labor contract, The parties cannot reach an agreement on the modification of the labor contract after consultation. ) provisions.

Objective Changes Economic Compensation] Article 46 (4) of the Labor Contract Law stipulates that if the labor contract cannot be performed due to a major change in the objective economic situation on the basis of which the labor contract is concluded (Article 41, Paragraph 1, Paragraph 4), the employer shall pay economic compensation to the employee.

According to Article 42 of the Labor Contract Law, the employer shall not terminate the labor contract in accordance with 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 pre-departure occupational health examinations, or suspected occupational disease patients are during the period of diagnosis or medical observation;

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

3. Sick or non-work-related injury, within the prescribed medical treatment period;

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

5. Have worked in the unit for 15 consecutive years and are less than 5 years away from the statutory retirement age;

6. Other circumstances stipulated by laws and administrative regulations.

Legal Analysis: If an employee falls 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:

1. Workers engaged in operations that expose occupational disease hazards have not undergone pre-departure occupational health examinations, or suspected occupational disease patients are during the period of diagnosis or medical observation;

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

3. Sick or non-work-related injury, within the prescribed medical treatment period;

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

5. Have worked in the unit for 15 consecutive years and are less than 5 years away from the statutory retirement age;

6. Other circumstances stipulated by laws and administrative regulations.

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.

Article 38 An employee may terminate a labor contract 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.

Legal Analysis: Illegal termination of a labor contract means that the company terminates the labor relationship with the employee without any legal reason. If the company dismisses without legal reasons, it is illegal to terminate the labor contract.

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

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 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 monthly wage referred to 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.

Article 48 Where an employer dissolves or terminates a labor contract in violation of the provisions of this Law, and the worker requests to continue to perform the labor contract, the employer shall continue to perform it; If the employee does not request to continue to perform the labor contract or the labor contract can no longer be performed, the employer shall pay compensation in accordance with Article 87 of this Law.

Article 87 Where an employer dissolves or terminates a labor contract in violation of the provisions of this Law, it shall pay compensation to the worker in accordance with twice the standard of economic compensation provided for in Article 47 of this Law.

Illegal termination of the labor contract means that the company terminates the labor relationship with the employee without any legal reason. If the company dismisses you without legal reasons, it is illegal to terminate the labor contract, and you should pay 2 months' salary as compensation for every year of service. The salary scale is calculated based on your average salary for the 12 months prior to your departure.

Circumstances under which the employee may be terminated: Under any of the following circumstances, the employer may terminate the labor contract by giving the employee 30 days' written notice or paying the employee an additional month's salary: (1) the employee is sick or injured not due to work, and is unable to perform the original job or work arranged by the employer after the expiration of the prescribed medical treatment period; (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.

Legal basis] 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 employee is sick or injured not due to work, and is unable to perform the original job or work arranged by the employer after the expiration of the prescribed medical treatment period; (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.

1. Circumstances under which an employer may unilaterally terminate a labor contract: According to Article 19 of the Regulations for the Implementation of the Labor Contract Law of the People's Republic of China, under any of the following circumstances, the employer may terminate a fixed-term labor contract, an indefinite-term labor contract or a labor contract with a term of completion of a certain work task with the employee in accordance with the conditions and procedures stipulated in the Labor Contract Law

1) The employer and the employee reach an agreement through consultation;

2) The worker is proved to be ineligible for employment during the probationary period;

3) The worker seriously violates the rules and regulations of the employer;

4) The worker is seriously derelict in his duties, engages in malpractice for personal gain, and causes major damage to the employer;

5) 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;

6) The worker uses fraud or coercion or takes advantage of the danger of others to cause the employer to conclude a labor contract or change the labor contract contrary to its true intentions; Collapse resistant.

7) The worker is investigated for criminal responsibility in accordance with law;

8) The worker is sick or injured not due to work, and cannot perform the original job after the prescribed medical treatment period has expired, nor can he engage in the work arranged by the employer.

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

10) 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;

11) The employer carries out reorganization in accordance with the provisions of the Enterprise Bankruptcy Law;

12) The employer has serious difficulties in production and operation;

13) Where an enterprise still needs to lay off personnel after changing its labor contract, or after changing its labor contract, it is necessary to reduce its personnel;

14) 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.

2. In order to fully protect the legitimate rights and interests of employees, according to Article 42 of the Labor Contract Law, the employer shall not terminate the labor contract in accordance with 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.

3. Termination of contract includes both parties and unilateral termination. Rescission between the parties is a new contract entered into by both parties in order to extinguish the original contract, i.e., the rescission of the contract. Unilateral termination refers to the extinction of the validity of the contract by one of the parties by exercising the right of rescission prudently or by agreement.