How did the unilateral dismissal of the unit become the dismissal by consensus ?

In this case, the dismissal of an employee without any justifiable reason is more inconsistent with the requirements of the law and more in line with basic fairness than the justifiable dismissal. If, in this case, the employer is ordered not to pay the employee in lieu of notice and 50% of the additional severance payment, wouldn't the cost of the unit's illegal termination be much lower than the cost of legal termination? The result of such a situation is extremely inconsistent with the principle of fairness and is extremely detrimental to social stability.

In this case, why should the unit be legal? Driven by profits, more units will be willing to violate the law to save costs, which is very detrimental to social harmony and stability. When arbitrating or handling such cases, if the court adopts the legal technique of legal fiction and consensus settlement in order to reconcile the contradictions between employees' claims, it is an idea in itself and a flexible application of the law, which reflects the superb skills of judges and arbitrators.

However, this kind of legal fiction should not turn a blind eye to the illegality of the illegal dismissal of the enterprise itself, but should also consider various factors such as the fault of the enterprise, the illegal means adopted, and the degree of violation in the process of dismissal, and reasonably and fairly define the responsibility of the enterprise, which is in line with the principle of fairness.

The "unilateral dismissal" of the employer has become "termination by consensus", mainly because the employer wants to take advantage of the loopholes in the policy and law to achieve the goal or exempt the compensation that should be given to the employee, so the employee must be cautious when confirming and signing to avoid falling into the trap.

Unilateral dismissal" has become a "dissolution by consensus" for the following reasons

1. There are several possibilities for the consequences of unilateral dismissal: the law does not support it; Compensation needs to be doubled; It is subject to a fine by the administrative department.

2. The dismissal of employees by most enterprises is an illegal dismissal, and the consequences of such illegal dismissal should have been that the dismissal was not established, and the dismissal decision should be revoked and the two parties should be sentenced to continue to perform the labor contract.

When the employer dismisses an employee, if there is no justifiable reason, such dismissal is an illegal dismissal. Within the scope of the Labour Code, the consequences of a violation of the law should have been the continuation of the performance by both parties, rather than the payment of financial compensation. Of course, within the scope of the Labor Contract Law, the consequences of this violation have been changed somewhat, giving employees a certain right to choose.

3. In this case, most employees only ask for economic compensation and have no intention of continuing to perform the contract.

In such cases, most employees have no intention of returning to the company to continue working when the dismissal has become a fait accompli, and only ask for economic compensation.

There is a contradiction between the employee's demand and the consequences of illegal dismissal. If the illegal dismissal should continue to be performed, the severance cannot be paid, because the precondition for the payment of severance is the termination of the labor contract. And the employee does not ask for continued performance.

Legal analysis: Negotiated termination is also to let the employee submit his or her resignation, but to give a certain compensation, and generally sign an agreement. Dismissal is to enforce it without considering the wishes of the employee, and will face compensation or compensation.

The law is based on the 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 50 The employer shall, upon dissolution or termination of the labor contract, issue a certificate of dissolution or termination of 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, in accordance with the relevant provisions of this Law, pay economic compensation to a worker during the period of starvation, it shall do so at the time of completion of the work handover.

The employer shall keep the text of the labor contract that has been dissolved or terminated for at least two years for future reference.

There is an essential difference between dismissal and negotiation and dismissal, one is voluntary resignation after negotiation, and the other is forced dismissal by the company. The differences between negotiated termination of labor contract and dismissal are as follows:

1. The removal of the labor contract is an act of performing the contract, and the termination of the labor relationship through the termination of the labor contract reflects the will of both the employee and the unit;

2. The dismissal of an employee is the termination of the labor relationship by administrative means according to the will of the unit, which has the nature of an administrative order. At present, dismissal is limited to employees who violate discipline.

3. Resignation refers to the termination of labor relations by resigning from work in accordance with labor laws and regulations or labor contracts. There are generally two situations for resignation:Immediately terminate the labor relationship in accordance with the law.

If the employer compels the employee to work with violence or threats, or does not pay wages as agreed in the contract, the employee may request the employer to terminate the labor contract at any timeAccording to the employee's own choice, the employer shall be notified in writing 30 days in advance to terminate the labor contract relationship.

4.If you resign voluntarily, there is usually no financial compensation and unemployment benefits. Both parties may terminate the employment relationship through negotiation and may demand compensation in accordance with the relevant provisions.

Labor Contract Law of the People's Republic of China

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 these Measures, it shall pay compensation to the worker in accordance with twice the standard of economic compensation provided for in Article 47 of this Law.

What are the resignation procedures?

The resignation process has the following points:

1. The worker should write a letter of resignation. If you grasp the reasons for your resignation and take the initiative to resign, there is no economic compensation, and you can't enjoy unemployment benefits.

2. The worker should apply for resignation one month in advance, submit the resignation letter at the beginning of the month, and ask the company to sign and agree.

3. Employees should go through the resignation procedures according to the management of the company's personnel department, and may have to sign and agree with the managers of each department according to the resignation form.

Legal Analysis: Resignation is the unilateral termination of the labor contract by the employee, and the termination of the labor contract through negotiation is an act of termination by both parties. The most prominent difference between the two is whether the employer is required to pay severance payments.

Legal basis: Article 20 of the Labor Law of the People's Republic of China The labor contract may be terminated upon the consensus of the parties to the labor contract.

Dismissal is a legal act in which the employer unilaterally proposes to terminate the labor contract relationship and serves a notice of termination on the employee. There are two types of dismissal: negligent dismissal and advance dismissal. Faulty dismissal refers to the act of the employer terminating the labor contract relationship without 30 days' notice under the premise that the employee is negligent, including the employee who is proved to be unqualified during the probationary period, seriously violates the rules and regulations of the employer, seriously derelicts of duty and twists the law for personal gain and causes heavy losses to the employer, the employee is unable to complete the work of the employer or refuses to repent after establishing labor relations with other units, concludes the labor contract by fraud and coercion, and commits a criminal offense.

Advance dismissal refers to the dismissal of an employee by the employer 30 days in advance or by paying wages in lieu of notice, including the employee's illness or injury and inability to perform the original job and the employee's disagreement with the transfer, incompetence after the job transfer, or the inability to reach a change agreement due to a change of circumstances; Dismissal due to redundancy. The employer must serve a notice of termination of the labor contract when dismissing an employee. Many employers tend to only pay attention to the substantive conditions of dismissal, but not to the procedural conditions of dismissal, which can easily lead to passivity and disadvantage in the arbitration or litigation process.

Termination through negotiation refers to the legal act of terminating the labor contract relationship between the employer and the employee through consultation. The two parties reached an agreement on the method, time limit and economic compensation for terminating the labor contract relationship and signed a termination agreement. According to Article 46 of the Labor Contract Law, if the employer first proposes to terminate the labor contract relationship and obtains the consent of the employee, the employer is still required to pay severance if both parties reach an agreement through negotiation.

Legal basis: Article 24 of the Labor Law of the People's Republic of China A labor contract may be terminated upon the agreement of the parties to the labor contract. Article 39 of the Labor Contract Law of the People's Republic of China (2012 Revision) [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 damage to the employer;

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

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

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