If workers are treated unfairly at work, they can apply to the Labor Arbitration Committee for arbitration to safeguard their legitimate rights and interests. If the company dismisses the employee without reason, is it possible for the employee to apply for labor arbitration successfully? What are the ways for employers to legally dismiss workers? Answer for you.
1. Is there a high probability of winning the labor arbitration?
Generally speaking, judging from the labor cases encountered over the years and the statistics of Ministry of Human Resources and Social Security, the success rate of workers in labor cases generally exceeds 80%. Under the guidance of professionals, the success rate of workers can exceed 95%. The cases in which laborers lose the case are mainly due to insufficient evidence or misunderstanding of legal provisions.
Second, the legal way for employers to dismiss workers
1. Employees shall not be dismissed at will during the probation period.
In order to dismiss the probationary employees correctly, we must grasp the principle of "not meeting the employment conditions". The employer must first prove whether the company has the "employment conditions" and prove that the employees do not meet the employment conditions. It is a typical mistake for an employer to dismiss employees during the probation period without knowing what the employment conditions are or being able to prove the employment conditions. Employees with strong awareness of rights protection have the right to request the resumption of labor relations, and at this time, the company will often fall into a more embarrassing situation in management.
2. There should be factual basis and institutional basis for dismissing employees who are at fault.
For employees who violate discipline, the employer cannot dismiss them all. According to the labor law, an employee must be in serious violation of discipline before the employer can dismiss him. Therefore, what is a serious violation of discipline is very important to the employer. It is best for the unit to clearly stipulate the serious violation of discipline in the employee handbook or rules and regulations, and pay attention to retaining the factual basis of employees' serious violation of discipline. If an employee seriously neglects his duty or engages in malpractices for selfish ends, which causes great damage to the interests of the employer, the employer can also dismiss him at any time, but he should also pay attention to the proof, especially the proof of what is "great damage" (it is best to have a system basis, and the standard of great damage should be clearly stipulated in the employee handbook or rules and regulations). In addition, if an employee is investigated for criminal responsibility or reeducation through labor according to law, the unit can also dismiss him at any time.
3. Notify in advance and pay economic compensation when dismissing employees without fault.
No-fault dismissal of employees is limited to the following situations:
(1) The employee is sick or injured non-work-related, and cannot engage in the original job or other jobs arranged by the employer after the medical treatment expires;
(two) the laborer is not competent for the job, and he is still not competent for the job after training or adjusting his post;
(3) The objective conditions on which the labor contract was concluded have changed greatly, which makes the original labor contract impossible to perform and the parties cannot reach an agreement on changing the labor contract through consultation. Employees who are dismissed without fault shall be notified in writing 30 days in advance and pay economic compensation according to their working years.
4. Economic layoffs must meet legal conditions and perform legal procedures.
The so-called economic layoffs refer to the dismissal of a group of employees in order to improve the production and operation situation during the legal rectification period when the employer is on the verge of bankruptcy, or when the production and operation situation is in serious difficulties. Economic layoff is a common practice for employers to overcome the inherent needs of business difficulties and is allowed by law. However, layoffs also involve the legitimate rights and interests of laid-off workers. Therefore, in order to ensure the effective balance between the legitimate rights and interests of both employers and workers, the law has made some moderate restrictions on the economic layoffs of employers: First, the employers who can make economic layoffs must be enterprises that are on the verge of bankruptcy, declared by the people's court to enter the legal rectification period or have serious difficulties in production and operation, and meet the standards of enterprises with serious difficulties stipulated by the local government, and it is really necessary to lay off employees. In addition, Shanghai also has strict restrictions on the implementation of economic layoffs, that is, the above-mentioned enterprises can only implement economic layoffs if they still have no improvement after implementing four measures: stopping recruitment, repaying all kinds of external employees, stopping overtime and reducing wages. Secondly, employers who meet the conditions of economic layoffs should reduce their staff according to the following procedures:
(a) thirty days in advance to explain the situation to the trade union or all employees, and provide information about production and operation;
(2) Proposing a plan for reducing personnel;
(three) to solicit the opinions of the trade union or all the staff and workers on the staff reduction plan, and to modify and improve the plan;
(four) to report to the local labor administrative department on the plan to reduce staff and the opinions of the trade union or all employees, and listen to the opinions of the labor administrative department;
(5) The employing unit shall officially announce the plan for retrenchment, go through the procedures for dissolving the labor contract with the retrenched personnel, pay economic compensation to the retrenched personnel in accordance with relevant regulations, and issue a certificate of retrenchment.
5. Special restrictions on dismissing employees
According to the provisions of Article 29 of the Labor Law, in order to protect special groups, an employer may not dismiss an employee in any of the following circumstances without fault:
(a) suffering from occupational diseases or work-related injuries and being confirmed to have lost or partially lost the ability to work;
(2) Being sick or injured within the prescribed medical treatment period;
(3) Female employees during pregnancy, childbirth and lactation;
(4) Other circumstances stipulated by laws and administrative regulations. In other words, the employer shall not dismiss an employee under any of the above circumstances unless he has serious violations of discipline and other faults.
6. Procedures for dismissing employees
When the employer dismisses employees, it should also pay attention to a procedural issue of notifying the trade union. According to Article 2 1 of the Trade Union Law of People's Republic of China (PRC), an enterprise shall inform the trade union of the reasons for unilaterally terminating the employee's labor contract. When the trade union thinks that the enterprise violates laws, regulations and relevant contracts and requires re-study, the enterprise shall study the opinions of the trade union and notify the trade union of the results in writing.
Is it possible for workers to apply for labor arbitration successfully? As can be seen from the above, labor arbitration is collegial, avoiding the arbitrary result of one person. Not only that, but also the principle of avoidance. This is to make the arbitration staff more reasonable and fair to hear the case of the company dismissing workers without reason. Therefore, as long as you have enough evidence, the chances of success are great. The above is the content compiled by Bian Xiao. There are online lawyers. If you have any questions, please feel free to consult.