What conditions does the employer need to unilaterally terminate the labor contract?

A labor contract refers to an agreement between an employee and an employer to establish a labor relationship and clarify the rights and obligations of both parties. The conclusion and modification of labor contracts shall follow the principles of equality, voluntariness and unanimity through consultation, and shall not violate the provisions of laws and administrative regulations. The following are the conditions that I need for the employer to unilaterally terminate the labor contract for your reference only. What are the conditions for the employer to unilaterally terminate the labor contract?

The right to unilaterally terminate the labor contract refers to the right enjoyed by the parties in accordance with the law, and the employee can resign unconditionally without the consent of the employer, and the employer must have legal termination conditions when exercising the right to unilaterally terminate the labor contract. The Labor Contract Law of the People's Republic of China, which has attracted much attention from employers and workers, was formally implemented on January 1, 28. The new Labor Contract Law continues the classification of the unilateral termination right of employers in the Labor Law, that is, Articles 39, 4 and 41 of the new law stipulate the conditions of immediate termination, advance notice termination and economic layoffs respectively, while Article 42 prohibits advance notice termination and economic layoffs. The labor contract can only be terminated if it meets the legal circumstances. At the same time, the new "Labor Contract Law" has made some new provisions different from the "Labor Law": it has supplemented two situations in which the employer can notify the employee to terminate the labor contract at any time, added an alternative way for the employer to terminate the labor contract in advance, appropriately relaxed the conditions for economic layoffs, and increased the restrictions of the employer to terminate the labor contract in advance and layoffs.

1. Permissible conditions for the employer to exercise the right of immediate dissolution

According to Article 39 of China's Labor Contract Law, the permissive conditions for immediate dissolution are limited to the workers in one of the following six situations:

(1) Cases that are proved to be unqualified for employment during the probation period

: Miss Zhang applied for a job in a company after graduation, and the labor contract signed has a probation period of three months, and both parties stipulated in the contract. The probation period is low in salary and tired in work. Seeing that the probation period is about to pass, Miss Zhang is really happy. However, the leader suddenly said that you didn't perform well during the probation period, so don't come tomorrow. We found a better candidate.

misunderstanding: both the employer and the employee have the right to terminate the contract at any time without any reason during the probation period.

We compare the stipulation in Article 37 of the Labor Contract Law that "the employee may terminate the labor contract by notifying the employer three days in advance during the probation period" with the stipulation in Article 39 of the Labor Contract Law that "the employee is proved not to meet the employment conditions during the probation period", and we can find that the employee does have such rights, but the employer does not-the employer needs to prove that the employee does not meet the employment conditions. Many employers question this: this is an unequal clause. In fact, employers and employees are actually in an unequal state. It is almost impossible for workers to have a thorough understanding of the employer's situation before joining the company. If they find that they are not suitable after work, they should have the right to make further choices. However, employers have a clear job description when recruiting employees. If they find that employees do not meet the employment conditions during the probation period and can prove it, they can unilaterally terminate the labor contract. Therefore, it is through this "formal inequality" that the labor law achieves "substantive equality".

whether an employee is qualified or not shall be based on the basic employment conditions such as the statutory minimum age for employment and the cultural, technical, physical and quality conditions stipulated at the time of recruitment. Unqualified employees include those who do not have the employment conditions at all or some of them, but all of them must be legally and effectively proved by the employer.

in addition, whether or not the probation period, the labor contract shall prevail; If the probation period agreed in the labor contract exceeds the statutory maximum time, the statutory maximum time shall prevail; If the employee has not gone through the formalities of becoming a full member after the expiration of the probation period, it cannot be considered that he is still in the probation period, that is, he can no longer dismiss the employee on the grounds that the probation period is unqualified.

It is suggested that employers should pay attention to the following aspects when using the probation period of labor contracts: 1) Before recruiting talents, complete and operational employment conditions should be worked out according to the requirements of the recruitment position. 2) For employees who are in probation period, it is necessary to pay attention to the inspection according to the employment conditions at any time at work. 3) When an employee is found to be ineligible for employment, evidence that can prove that the employee is ineligible for employment should be obtained in time. 4) After proving that the employee does not meet the employment conditions, if you want to terminate the labor contract with him, you should terminate it during the probation period, otherwise, you cannot terminate it according to this clause after the probation period.

(II) Serious violation of labor discipline or rules and regulations of the employing unit (hereinafter referred to as "serious violation of discipline")

The internal rules and regulations of an enterprise can be called "internal enterprise law", which is an extension and concretization of national labor laws and regulations, an important basis for internal management behavior of an enterprise and a code of conduct for employees. The rules and regulations formulated within the enterprise have legal effect and must have legal and effective elements. According to the provisions of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases, the following three requirements must be met: First, the internal rules and regulations of the enterprise should comply with the national laws, administrative regulations and policies. Second, the internal rules and regulations of enterprises should be formulated through democratic procedures. Third, the internal rules and regulations of the enterprise have been publicized to the workers. This actually determines three general criteria for the effectiveness of rules and regulations, that is, through democratic procedures, legality and publicity, if one of the three conditions is missing, the rules and regulations will be invalid. The employer shall bear the burden of proof for labor disputes arising from decisions made by the employer such as dismissal, expulsion, dismissal, dissolution of the labor contract and reduction of labor remuneration. Therefore, employers must be cautious and strictly abide by relevant laws and regulations, so as to reduce risks and achieve the purpose of institutionalized and standardized management.

violation of discipline should be based on the labor discipline and the rules and regulations of the employing unit, which includes both those that all workers are obliged to follow and those that workers are obliged to follow according to their positions. Whether the violation of discipline is serious or not shall generally be subject to the limits stipulated by labor laws and regulations and the specific limits stipulated by the internal labor rules of the employer according to this limit. Laws and regulations can't and can't be specified in detail, because the situation of employers in all walks of life is different, so it is completely based on the provisions of internal rules and regulations. If there are no rules and regulations at all or the rules and regulations do not stipulate the violation of discipline, it is impossible to deal with the employees who violate discipline. For example, in the case of a five-star hotel losing the case, the doorman of the hotel was worried about his own demolition. One day, he wrote the word "demolition" in red on the door of the five-star hotel. It happened that the manager passed by and was very angry. He thought that the image of the hotel had been seriously affected and told the human resources management department that the doorman must be dismissed. Therefore, the hotel made a decision to terminate the labor relationship based on the doorman's behavior. The doorman refused to accept the application for labor arbitration to cancel the decision. During the trial, the doorman admitted that his behavior was improper, but he thought that there was no relevant provision in the rules and regulations, so there was no basis for the cancellation of the hotel. In the hotel's rules and regulations, "scribbling" is a minor fault, and it is stipulated that only two minor faults can be lifted. Accordingly, the Arbitration Commission ruled to cancel the hotel's decision to terminate the labor relationship. Therefore, the employer should list in detail all possible violations of discipline and safeguard the rights and interests of the employer.

It is suggested that employers must review the legality of labor rules and regulations before January 1, 28. If the rules and regulations of the employing unit violate the provisions of laws and regulations and damage the rights and interests of workers, the workers may terminate the contract in accordance with the provisions of Item (4) of Article 38. If the employee is dismissed according to this article, the employing unit shall pay economic compensation to the employee who is dismissed. Article 8 If the rules and regulations of the employing unit directly related to the vital interests of workers violate the provisions of laws and regulations, the labor administrative department shall order them to make corrections and give them a warning; If it causes damage to workers, it shall be liable for compensation.

(III) Serious dereliction of duty, graft, causing heavy losses to the interests of the employing unit

This means that during the performance of the labor contract, the laborer violates his obligation to be loyal to his duties, safeguard and promote the interests of the employing unit, commits serious negligence or deliberately seeks personal gain by taking advantage of his position, causing heavy losses to the tangible property, intangible property or personnel of the employing unit, but not to the extent of being punished. For example, accidents caused by negligence; Irresponsible work often produces waste products, damages equipment, wastes materials, etc. There is such a case that an assembly line employee of a large Sino-foreign joint venture had a dispute with the unit leader because of the request for an increase in holiday subsidies. Due to the uncontrollable emotion, the employee removed the key production equipment on the assembly line and hid it, which caused the whole production line to stop working for one day, and the unit could not deliver the goods on time, so it had to bear a penalty of 5, yuan for delayed delivery. The enterprise immediately decided to terminate the labor contract relationship with the employee, and the employee refused to accept it and filed an application for labor dispute arbitration.

during the arbitration, the company provided the Employee Manual signed and approved by the employees: in the chapter of violation of discipline, the situation of destroying production equipment was included. More importantly, the Employee Manual also clearly stipulates the standard of "serious" violation of labor discipline or rules and regulations, that is, those who cause direct economic losses of 3, yuan or more to the company are "serious". As a result, the case became very clear: the enterprise provided a full and legal basis for its termination of the labor contract, fulfilled its complete burden of proof, and the employee's petition was rejected by the labor dispute arbitration Committee according to law.

enterprise rules and regulations not only play an extremely important role in the management process, but also are the key for enterprises to win in labor disputes. If the unit terminates the labor contract relationship due to employees' serious violation of labor discipline or rules and regulations, there must be clear and legal rules and regulations. The so-called "clear" requirement is that the unit must be able to come up with rules and regulations that conform to the legal provisions, so as to prove that employees have indeed violated the corresponding systems, and the degree is serious, and both points are indispensable. In the above cases, it is precisely because the rules and regulations of the enterprise are "serious" that the enterprise can come up with sufficient basis to prove that its act of dissolving the labor contract relationship is legal and effective.

(4) Those who have been investigated for criminal responsibility according to law (including those who have been reeducated through labor)

What we should pay attention to here is that those who have been punished through reeducation through labor can dissolve the labor relationship? Reeducation through labor is an administrative punishment for those who have committed minor crimes but are not qualified for criminal punishment and have the ability to work. Since it is an administrative punishment, it shows that it is the administrative responsibility of the offender, not the criminal responsibility. According to Article 31 of the Opinions on Several Issues Concerning the Implementation of the Labor Law, if a worker is reeducated through labor, the employer may terminate the labor contract with the worker according to the fact of reeducation through labor. For those who have been reeducated through labor, during the reeducation period, compulsory labor must be carried out by the reeducation organs. At this time, the labor contract concluded between them and the employer has actually been unable to be fulfilled. Therefore, it is reasonable to stipulate that the employer can terminate the labor contract with them. It is suggested that the employer should make a decision on whether to terminate the labor contract as soon as possible for the workers who have been investigated for criminal responsibility according to law. If it decides to terminate the labor contract, it shall promptly notify the employee in writing of the decision.

(5) The laborer establishes labor relations 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 correct after being put forward by the employer;

one of the characteristics of a labor contract is that the parties to the labor contract must perform it in person. Under normal circumstances, workers who work in perennial jobs establish labor relations with other employers at the same time, which will inevitably affect the normal performance of labor contracts. Therefore, workers in our country generally only sign labor contracts and establish labor relations with one employer. Article 91 of the Labor Contract Law stipulates that if an employer recruits workers whose labor contracts with other employers have not been dissolved or terminated, causing losses to other employers, it shall bear joint and several liability for compensation. For part-time staff, it must be approved by the original unit. If an employee takes a part-time job outside without the consent of the unit and it has a serious impact on his own work, the employer may terminate the labor contract according to this article.

(6) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1, Article 26 of this Law (that is, the laborer made the other party conclude or change the labor contract against his true intention by means of fraud or coercion or taking advantage of his position).

the right of unilateral notice to terminate the contract refers to three situations stipulated in Article 4 of the Labor Contract Law. The employer may terminate the contract, but it shall notify the employee in writing 3 days in advance or pay the employee an extra month's salary. Generally, it is limited to the situation that the labor contract cannot be fulfilled due to changes in subjective and objective conditions without the fault of the laborer.

(1) After the expiration of medical treatment, the employee is unable to engage in his original job or other work arranged by the employer

The medical treatment period here refers to the time limit for the employee to stop working and take a rest due to illness or non-work-related injury and not to terminate the labor contract. If a worker needs to stop working for medical treatment and rest due to illness or non-work-related injury, he/she will be given a medical treatment period of three months to twenty-four months according to his/her actual working years and working years in this unit: 1. If the actual working years are less than ten years, those who have worked in this unit for less than five years will be three months, and those who have worked in this unit for more than five years will be six months. 2. If the actual working experience is more than ten years, six months for those who have worked in this unit for less than five years, nine months for those who have worked for more than five years and less than ten years, and twelve months for those who have worked for more than ten years and less than fifteen years; Eighteen months for fifteen years and twenty years; Twenty years or more is twenty-four months. (See Provisions on Medical Treatment Period for Employees of Enterprises Suffering from Illness or Non-work-related Injury)

According to the provisions of this article, after the medical treatment period expires, the employer may terminate the contract if the employee is unable to engage in the original job and the other jobs arranged by the employer.

(2) The laborer is not competent for the job, even after training or job adjustment.

The term "incompetent for the job" here refers to the inability to complete the tasks agreed in the labor contract as required or the workload of people of the same type and position. After the expiration of the probation period, the employee is not competent for the work agreed in the labor contract, and the employer should train him or adjust his post. If the employee is still not competent for the original agreed work after a certain period of training, or is not competent for the rearranged work, it means that the employee lacks the labor ability to perform the labor contract. At present, there is no uniform standard in law, and we can only draw rules from individual cases. In practice, two kinds of situations can not be established: 1. The conclusion of a single leader to a single subordinate; 2. The final elimination system is adopted to determine incompetence. Generally, the principles of openness, fairness and impartiality should be adopted to determine whether the employee is qualified for the job. Employees have the right to review, and the standards should not be unified for the same group from person to person. 36-degree assessment method is usually adopted, and the comprehensive evaluation of superiors, subordinates and customers is generally considered fair.

what needs to be reminded to the employer is that the employer is in management.