But there are many risks associated with the termination of labor contracts. In order to minimize the cost of dismissal, companies should pay special attention.
When an employer dismisses a worker for negligence, the worker should see if the above conditions are met. If not, the employer has violated the law in terminating the labor contract, and the worker can ask for compensation.
Article 39 of the Labor Contract Law provides for six types of fault-based termination of the labor contract: (1) during the trial period is proved to be not in line with the conditions of employment; (2) serious violation of the employer's rules and regulations; (3) serious breach of duty, malpractice, causing significant damage to the employer; (4) the laborer at the same time and other employers to establish a labor relationship, the work task of the unit has a serious impact, or after the work of the unit to complete the work, or the work of the unit, or the work of the unit to complete the work of the unit, or the work of the unit, or the work of the unit, and the work of the unit. (4) If the laborer establishes labor relations with other employers at the same time, which seriously affects the completion of the unit's work, or if the employer refuses to correct the situation after the employer's proposal; (5) If the labor contract is invalidated due to the situation stipulated in the first paragraph of the first subparagraph of Article 26 of the Law; (6) If the laborer is being investigated for criminal responsibility according to the law.
Regardless of which situation is applicable to the termination of the labor contract, not only does it need to be physically consistent with the situation, but also needs to be carried out in strict accordance with the procedure.
In the six cases mentioned above, the law gives the employer the right to terminate the labor contract immediately because it is the fault of the worker. However, there are many risks associated with the termination of an employment contract. In order to minimize the cost of dismissal, companies should do the following: 1. For the first case, the employer should clearly define and publicize the "conditions of employment" in advance, and do a good job in the probationary period of assessment. 2.
Once it is found that a worker does not meet the conditions of employment, the employer should terminate the labor contract immediately.
It is important to note that a worker must be found to be ineligible for employment "during the trial period". If the trial period is over, the employer cannot terminate the employment contract under this paragraph.
2. For the second, third and fourth cases, the employer has to decide which cases are "serious violation", "serious dereliction of duty", "serious damage" and "serious influence". "serious impact" and so on should be stipulated in its internal rules and regulations, and publicized, so that workers know clearly what provisions of the unit is the case of immediate dismissal, so as to reduce the employer in the future may occur in arbitration or litigation in the rate of defeat.
3. For the fifth case, the labor contract shall be invalidated if the laborer, by means of fraud, coercion, or taking advantage of a person's danger, enters into or alters the labor contract in contravention of the employer's true meaning.
If there is a dispute about this kind of invalidity, it shall be confirmed by the labor dispute arbitration institution or the people's court. After the invalidation is confirmed, the employer also enjoys the right to terminate the labor contract immediately.
4. For the last case, the employer should know what is "being held criminally liable", i.e., being exempted from prosecution by the People's Procuratorate, sentenced by the People's Court, or exempted from criminal punishment by the People's Court in accordance with Article 32 of the Criminal Law. In addition, the worker is correctional labor, the employer can be based on the fact of correctional labor terminate the labor contract with the worker.
The lawyer reminds: the employer to dismiss the worker for negligence, the worker should see whether the above circumstances, if not, the employer is illegal to terminate the labor contract, you can ask for compensation. The conditions for dismissal of dispatched employees by the employer Read more: In the legal relationship of labor dispatch, the employer and the dispatched workers are in a labor service relationship, and there is no labor contract relationship. The employer signs a labor agreement with the worker, and in the labor process, the employer manages and directs the dispatched workers, and the workers abide by the rules and regulations of the employer and provide labor under the arrangement of the employer.
The dismissal of a dispatched worker by the employer shall be in accordance with the conditions stipulated in the labor laws. According to the second paragraph of Article 65 of the Labor Contract Law, if a dispatched worker has any of the circumstances stipulated in the first and second paragraphs of Articles 39 and 40 of the Law, the employer may return the worker to the labor dispatching unit, which may terminate the labor contract with the worker in accordance with the relevant provisions of the Law. The labor dispatching unit may, in accordance with the relevant provisions of this Law, terminate the labor contract with the worker. In other words, the employer can only return the dispatched laborer because the laborer does not meet the conditions of employment, has committed a serious disciplinary violation, or is incapable of performing his or her job. In this way, the employer will terminate the labor contract with the worker in accordance with the labor contract and the relevant provisions of the law. If the worker has not violated the Labor Contract Law or the labor agreement, the employer may not arbitrarily return the worker to the labor dispatching unit, and the labor dispatching unit may not arbitrarily terminate the labor contract with the worker, or it will be held legally responsible. New Labor Law: How to Obtain Proof of Dismissal Case: An enterprise in the catering industry in Chaoyang District dismissed an employee, who applied to the Chaoyang District Labor Dispute Arbitration Committee for labor dispute arbitration and demanded the payment of economic compensation for the termination of the labor contract. During the hearing, the lawyer hired by the enterprise defended that the enterprise had not dismissed the employee, but that the employee himself had left the company and had not returned to the company. The employee was dumbfounded, as the company had given verbal notice when dismissing the employee. Employees do not have any evidence in hand to prove that the results of the lawsuit, and later sued to the Central District Court, the same is also lost.
Many of the workers we met did not or could not ask for a written proof of dismissal.
The lack of evidence deprived many dismissed employees of the opportunity to receive financial compensation.
In practice, workers in the normal can not get the proof of dismissal, you can take the alternative way to get the proof of dismissal, we suggest the following methods: First, the work handover sheet in the process of handing over the work, in the work handover sheet written on the reasons for leaving the job for the "dismissal", and want to find a way to let the unit stamp or legal signature. The first one is a work handover sheet.
If you don't have a handover sheet, you can print it out yourself. The original must be in your hands, otherwise it will not be very useful.
Remember: the production should be timely, do not claim compensation with the company did not have the results, and then production, that time the company will be vigilant, the possibility of stamping is unlikely.
Second, the certificate of separation Now looking for a new job, the new unit will have to leave the certificate of separation, requiring the unit to open the certificate of separation, reasonable. If you can write is dismissed by the unit, better! Can not write only write the fact of leaving can also be, the reason for leaving the arbitration by the unit to prove it.
Third, recordings Recordings must be recorded to record the main leaders of the company, especially the legal person, others are not very useful. It should be clear and complete.
Special reminder: the time to pay attention to the evidence, to notify you of the dismissal of one or two days, the first to get the dismissal of the certificate, and then talk about the issue of economic compensation, be sure that the unit is not too much to guard against you, go to get the evidence. Otherwise, the unit is vigilant, you will be very difficult to get strong evidence, so it is recommended that the precursor to the occurrence of dismissal in time to learn the knowledge of labor law or consult a professional, according to the actual situation, the design of a set of complete and thorough program, so that you can lay the foundation for the future claims. Author: Mr. Zhang Feng - Labor Arbitration Lawyer
Employees who do not meet the company's requirements can be dismissed_Risks of dismissal of employees to avoid the proposal
We are an electronic R & D company in Shanghai, the technical department has a new employee, is currently in the probationary period, there are still 2 weeks to be corrected, but because of the company's business direction of the adjustment, resulting in his position no work tasks, basically, is idle, so the company decided to revoke the post, and then the company will not be able to do the work, so it will not be able to do the work. But because of the company's business direction adjustment, resulting in his post no work tasks, basically idle, so the company decided to abolish the post, transfer him to other departments, after communication, he agreed to go, but the company hopes to extend the probationary period of one month, to see how he adapted to the new post, which he is not willing to, the company must be committed to the transfer of his post in accordance with the normal time to turn to the right, and a strong attitude. The company disagreed and decided to dismiss the employee. The employee believes that the company has no reason to dismiss him, he hopes that the company can give him compensation.
Now, the company's determination to dismiss him has been made, but how to operate to avoid the risk?
Now the company has made up its mind to dismiss him, but how can we avoid the risk?
First, in conjunction with this case, the intention of the enterprise is to terminate the labor contract with the employee during the trial period, first of all, the relevant legal provisions are clear as follows: 1, "Labor Contract Law" Article 19 of the term of the labor contract for more than three months than less than a year, the probationary period shall not exceed one month; labor contract for more than a year than less than three years, the probationary period shall not exceed two months; more than three years of fixed-term and open-ended labor contracts, the probationary period shall not exceed two months. The probationary period shall not exceed one month for labor contracts with a term of more than three years but less than three years.
The same employer and the same worker can only agree on a probationary period once.
Article 21 During the probationary period, the employer shall not terminate the labor contract except in the cases stipulated in Articles 39 and 40 (1) and (2) of this Law. If an employer terminates an employment contract during the probationary period, the employer shall explain the reasons to the worker.
Article 36 An employer may terminate an employment contract by consensus with the workers.
Article 39 The employer may terminate the employment contract if the worker: (1) is proved to be incompatible with the conditions of employment during the probationary period; (2) seriously violates the rules and regulations of the employer; (3) seriously fails to perform his duties, engages in malpractice for personal gain and inflicts great damage on the employer; (4) the worker establishes employment relationships with other employers at the same time, which seriously affects the fulfillment of the work tasks of the employer, or the work tasks are seriously affected by the employer after the employer has established the employment relationship with the worker. (d) If the worker establishes labor relations with other employers at the same time, which seriously affects the accomplishment of the work tasks of the employer, or if the employer refuses to make corrections after being proposed by the employer; (e) If the labor contract is invalidated due to the circumstances stipulated in the first paragraph of Article 26(1)(a) of the Law; or (f) If the worker is being investigated for criminal responsibility.
Article 40 In any of the following cases, the employer may terminate the employment contract after giving the worker thirty days' notice in writing or paying him one month's additional wages: (1) If the worker is ill or injured not due to work, and is unable to perform his original work after the expiration of the prescribed medical treatment period, or is unable to perform the work that has been arranged by the employer; (2) If the worker is unable to perform his work, and after training or adjustment of his work position, the worker is unable to perform the work, and after training or adjustment of his work position, the worker is unable to perform the work. (b) If the worker is unable to perform his/her job, and he/she is still unable to perform his/her job after training or adjusting his/her work position; (c) If there is a significant change in the objective circumstances on which the labor contract was concluded, which makes it impossible to perform the labor contract, and the employing unit and the worker fail to reach an agreement to change the content of the labor contract after negotiation.
2. Article 24 of the Labor Law stipulates that a labor contract may be terminated by consensus of the parties to the labor contract.
Article 25 The employer may terminate the labor contract if the worker: (1) is proved to be incompatible with the conditions of employment during the probationary period; (2) seriously violates the labor discipline or the rules and regulations of the employer; (3) seriously neglects his duties, engages in malpractice for personal gain and inflicts great damage on the interests of the employer; (4) is being investigated for criminal responsibility according to law.
Article 26 In any of the following cases, the employer may terminate the labor contract, but shall notify the worker in writing thirty days in advance: (1) If the worker is sick or has suffered an injury not caused by work, and after the expiration of the medical treatment period, he or she cannot perform the original work or the work that has been arranged by the employing unit; (2) If the worker is unable to perform the work, and after training or adjusting the position, he or she is still unable to perform the work; (3) If he or she has failed to perform the work, and after training or adjusting the position, he or she is still unable to perform the work; (4) If he or she has been criminally liable according to law. (c) If there is a significant change in the objective circumstances on which the labor contract was concluded, making it impossible to perform the original labor contract, and no agreement can be reached on the change of the labor contract after consultation between the parties concerned.
Second, the facts of the case analysis 1, the employee situation: the employee is still in the probationary period, another 2 weeks before the regularization of the current position is basically no work, idle; agreed to transfer, but did not agree to extend the probationary period; for the company's request for compensation for the dismissal of the company, indicating that it is willing to continue to work in the company and have a certain degree of cooperation, and have the sense of rights; 2, the company situation: the company's business direction adjustment, resulting in the lack of work tasks of the position; (c) the labor contract is based on objective changes that make it impossible to change the labor contract after consultation with the parties. Company situation: the company's business direction adjustment, resulting in the lack of job tasks (contract conclusion based on changes in the objective situation), willing to keep the employee and transfer with the consensus of the employee, but asked to extend the probationary period, do not agree with the original plan to turn, due to the probationary period of the issue of the employee did not reach a consensus with the employee, and then decided to dismiss the employee; Third, the case of risk avoidance recommendations: 1, to confirm whether to sign an employment contract: if the employee signed a written employment contract, it can be avoided. 2, the content of the labor contract: confirm the duration of the labor contract, job title, probationary period, wage scale, probationary period assessment and whether there is a description of the transfer, such as the contract does not specify the name of the job, the probationary period starting date, you can be in accordance with the provisions of the Employment Contracts Act to implement the corresponding probationary period and according to the actual workplace assessment; 3, the work of the probationary period assessment 3, the probationary period of work assessment: the employee's probationary period of work assessment and evaluation, and assessment interviews, so that the employee to sign to confirm, not sign the best to have a third person present to witness, make a good record of it, and keep it as evidence; 4, the collection of written evidence: including the employee's work performance since joining the staff, employee evaluation, evaluation of the superiors, focusing on the review of whether there are disciplinary violations, whether there is a written punishment According to the labor law and labor contract law related legal provisions, enterprises and probationary employees to terminate the labor contract to prove that the employee does not meet the conditions of employment, therefore, the collection of evidence in this regard is particularly important, can not be based on verbal dismissal of dismissal; 5, the examination of the employee and to be transferred to match the degree of the position: although the enterprise and the employee can be transferred by consensus, but the enterprise also needs to be the quality of the employee's own abilities. To the quality of the employee's own ability to make a comprehensive consideration, to confirm whether the employee is suitable for the proposed transfer of positions, such as the employee does not have the core competencies required to transfer positions, it is necessary to transfer the processing of caution, so as to avoid unnecessary disputes at a later stage; such as the employee's overall ability to stronger, with the proposed transfer of the core competencies required for the position, then there is no need to overly entangled in the length of probationary period 6, the signing of the labor contract to change the formalities : Sign a change agreement with the employee on matters related to job changes, both parties to keep; can be agreed in the agreement for a certain period of inspection, such as the inspection period can not meet the job requirements, then give a pay cut and other ways of dealing with the treatment, a roundabout way to get around it; 7, negotiation of termination of the labor contract: in-depth communication with the employee, to understand the advantages and disadvantages of the use of HR resource advantages to recommend other companies related jobs, so that the employee takes the initiative to resign, to keep a good working record, and to make the employee to take the initiative to resign. Resignation, retaining a good work record, of course, everyone is happy; 8, do the worst: advance communication with the boss, inform the actual situation and the existence of risk, and do a good job of negotiation does not need to be given to the employee compensation of the psychological and economic preparations In the final analysis, we should pay more attention to the day-to-day management of employee relations, their own system of standardization and risk avoidance contract signing, the effort should be made in the usual time, can not do things on the spur of the moment, not to ignore the laws and regulations, and not to dispose of the employee at will. The company's business is not a business that can be used as a business, but it is a business that can be used as a business.
Employees who do not meet the company's requirements can be dismissed _ HR how to skillfully dismiss the company's employees?
How can HR skillfully dismiss the company's employees? The company's staff is a technical job, especially for the company's many years of service to the old colleagues, dealt with well, we peacefully "hand over" dealt with not well, will inevitably lead to conflict, and even more will lead to the収群架, so how to skillfully dismiss the staff to minimize the impact of the problem is a lot of HR have to face, in fact, also open non - the problem is that the company's staff can't be dismissed. In fact, there are no rules to follow, as long as you follow certain principles, you can still successfully solve this thorny problem. The probationary period shall not dismiss employees at will to correctly dismiss employees within the probationary period, must grasp the principle of "does not meet the conditions of employment". The employer must first prove whether there are "conditions of employment" in the organization, and at the same time, it must prove that the employee does not meet the conditions of employment. It is a typical mistake in practice for an employer to dismiss an employee during the probationary period without knowing what the conditions of employment are and without proving that the conditions of employment are met. Employees who are aware of their rights have the right to demand the resumption of the labor relationship, which often puts the company in an even more difficult position in terms of management. Dismissal of an employee at fault should be based on facts and a systematic basis. An employer may not dismiss an employee who is far from being disciplined. The Law on Labor and Employment stipulates that an employer may only dismiss an employee for serious misconduct. Therefore, it is important for the employer to define what constitutes a serious breach of discipline. It is advisable to specify in the employee handbook or in the rules and regulations what constitutes a serious breach of discipline and to keep the evidence of such a breach in the employer's possession. If an employee is guilty of serious misconduct or malpractice that causes significant damage to the interests of the employer, the employer may dismiss the employee at any time, but again, attention must be paid to the proof of this, in particular to the question of what constitutes "significant damage" (it is best to have a systematic basis for this, and to specify the criteria for significant damage in the employee handbook, precepts and rules and regulations). In addition, the employer may dismiss an employee at any time if the employee has been legally prosecuted and sentenced to penal servitude or to corrective labor. Dismissal of an employee without fault is subject to prior notice and payment of economic compensation. Dismissal of an employee without fault is limited to the following cases: 1) when the worker is sick or has sustained an injury not due to work and after the expiration of the medical treatment period is not able to perform his/her original job or a job that has been assigned to him/her by the employer; 2) when the worker is not able to perform his/her job and after training or adjusting the work position, he/she is not able to perform his/her job; 3) when the objective situation on which the labor contract was concluded has changed substantially. (3) If the objective circumstances on which the labor contract was concluded have changed substantially, making it impossible to perform the original labor contract, and the parties cannot reach an agreement to change the labor contract after negotiation. If an employee is dismissed through no fault of his/her own, the employee is notified in writing 30 days in advance, and economic compensation is paid according to the number of years of service. Economic layoffs must comply with legal conditions and procedures. Economic layoffs refer to the dismissal of a large number of employees to improve the production and management situation of an employer that is on the verge of bankruptcy and is undergoing statutory reorganization when the employer is experiencing serious difficulties in its production and management situation. Economic layoffs are a common practice for employers to overcome inherent business difficulties and are permitted by law. However, layoffs also involve the legitimate rights and interests of the workers being laid off. Therefore, in order to ensure an effective balance between the legitimate rights and interests of both the employer and the workers, the law imposes some moderate restrictions on economic layoffs by employers: firstly, the employers who are entitled to economic layoffs must be on the verge of bankruptcy, have been declared by the People's Court to be in a period of legal consolidation, or have serious difficulties in their production and operation, and have reached the criteria of an enterprise in serious difficulties as set by the local government, and have the need to lay off employees. It is not enough to do the above. When dismissing employees, we cannot adopt a "one-size-fits-all" strategy, and we have to be flexible according to the actual situation for people with different personalities and positions, especially for those who are introverts, who are usually not taken seriously and are not understood by anyone, so if they are dismissed all of a sudden, they do not know what the reaction will be. It is the same for people in different positions, everyone should take measures according to the actual situation, so that we can change the situation into a better one. Interviews with dismissed executives must be completely respectful Case 1: There is a stock company, and the structure of the company is that the first level is the president, the second level is the vice president of finance, the third level is the vice president of technology, and the fourth level is the vice president of HR. Due to a change in shareholding, the original shareholder's president has left the company, and the new president wants to fire the VP of technology, who also has a stake in the company, but in the meantime, the VP of technology's project has lost its merit, and the new president has even more reason to fire the VP of technology in this case. As HR, what should we do? During the class, there were many different opinions, some suggesting that the VP of HR go to the interview, some saying that the president go alone, and some saying that the president not the VP of HR*** attend the interview together. In this case, Mr. Liu Haobin analyzed for us that the vice president of HR is the subordinate of the vice president of technology, in the interview, obviously the position level is not matched, and the vice president of HR should not attend the interview alone, and letting both parties **** participate in the conversation will obviously backfire, then as HR, we should do the president's work in this case to reduce the psychological burden of the president's dismissal, and let the vice president of HR to attend the interview alone, and inform the president that the vice president of technology will not attend the interview. In this case, HR should first do a good job for the CEO, minimize the psychological burden of dismissal, and let him go to the interview with the VP of Technology alone, informing him that he is only required to conduct the first interview, and that he is not required to be present in the subsequent interviews; and secondly, after the first interview, the VP of Technology will not be required to conduct the second or even the third further interview. Through this case, we learned that for executives of a company, in addition to considering their gender, age, family, and economic status, the most important thing to consider is the need for social respect for executives, and that only when they are given enough respect will the interview become easy and harmonious. Emotional management of dismissal interviews should not be ignored. Case 2: A company was originally located on the 15th floor of an office building and moved to the 18th floor due to the expansion of the company's business. A pregnant employee was responsible for the front desk work, she proposed to work at home because she felt the company smelled and her body was not fit, without the approval of the company, she went back to work at home. Upon hearing that the pregnant front desk staff had gone home to work because of the company's environmental problems, two pregnant female staff members of the technical department also requested to go home to work. Since the work of the technical department could be process-controlled without any hindrance, and the receptionist could not work normally if she went home, the company decided to dismiss the receptionist. According to the law, the company cannot unilaterally dismiss an employee during pregnancy, as a HR, how should you deal with this? In the process of dismissing an employee, firstly, there should be a factual basis for dismissing the employee; secondly, according to the law, the company has the right to terminate the labor contract between both parties; thirdly, the company should not communicate with the employee in advance, and try to pacify the employee's emotions. Only by taking these three important steps can you effectively control the emotions of your employees, and in the case of employees with special circumstances, it is even more important to start with the emotions so that you can solve the problem in a timely and effective manner. Dismissing an employee is an embarrassing thing, and it is also a bad blow to the employee. Therefore, HR is advised to think more from the other party's point of view, to be more patient and understanding, and to believe that most people can understand the company's approach if things are really explained clearly, and lastly, we must not forget to encourage them. If they are not suitable for the company, it does not mean that there is no room for them to develop, but as long as they work hard, they can be appreciated and recognized by the society and their supervisors.