However, there are many risks when the labor contract is terminated. In order to better reduce the cost of dismissal, enterprises should pay special attention to it.
If the employer dismisses the employee on the grounds that the employee is at fault, the employee should see whether the above conditions are met. If the above conditions are not met, the unit may terminate the labor contract illegally and claim compensation.
Article 39 of the Labor Contract Law stipulates six situations of wrongful termination of the labor contract: (1) those who are proved unqualified during the probation period; (two) a serious violation of the rules and regulations of the employer; (three) serious dereliction of duty, corruption, causing great damage to the employer; (4) 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 the employer refuses to correct it; (5) The labor contract is invalid due to the circumstances specified in Item 1 of Paragraph 1 of Article 26 of this Law; (6) Being investigated for criminal responsibility according to law.
No matter which case is applicable, the termination of the labor contract of the laborer should not only conform to this situation, but also be carried out in strict accordance with the procedures.
In the above six cases, because it is the fault of the laborer, the law gives the employer the right to terminate the labor contract immediately. However, there are many risks when the labor contract is terminated. In order to reduce the dismissal cost better, enterprises should do the following: 1. In the first case, the employer should make clear and publicize the "employment conditions" in advance and make a good assessment during the probation period.
Once an employee is found to be unqualified for employment, the employer shall immediately terminate the labor contract.
It must be noted that it must be proved that "during the probation period" does not meet the employment conditions. If the probation period has expired, the labor contract cannot be terminated by this clause.
2. For the second, third and fourth cases, the employer shall stipulate in its internal rules and regulations which cases belong to "serious violation", "serious dereliction of duty", "major damage" and "serious influence", and publicize them, so that workers can clearly know which regulations belong to immediate dismissal, thus reducing the failure rate of the employer in arbitration or litigation that may occur in the future.
3. For the fifth case, that is, the laborer uses fraud, coercion or taking advantage of the danger of others, the employer concludes or changes the labor contract against the true meaning, which makes the labor contract invalid.
If there is any dispute over the invalidity, it shall be confirmed by the labor dispute arbitration institution or the people's court. After confirmation is invalid, the employer has the right to terminate the labor contract immediately.
4. In the last case, the employer should know what is "being investigated for criminal responsibility", that is, being exempted from prosecution by the people's procuratorate, being sentenced to punishment by the people's court, and being exempted from criminal punishment by the people's court according to Article 32 of the Criminal Law. In addition, if the laborer is reeducated through labor, the employer may terminate the labor contract with the laborer according to the facts of reeducation through labor.
The lawyer reminds: the employer dismisses the employee on the grounds that the employee is at fault, and the employee depends on whether the above conditions are met. If the above conditions are not met, the unit may terminate the labor contract illegally and claim compensation. Introduction to the conditions for the employer to dismiss the dispatched employee: In the legal relationship of labor dispatch, the employer and the dispatched employee are labor relations, and there is no labor contract relationship. The employing unit signs a labor service agreement with the laborer. In the process of labor, the employing unit manages and guides the dispatched workers, and the workers abide by the rules and regulations of the employing unit and provide labor under the arrangement of the employing unit.
The employer shall meet the conditions stipulated in the Labor Law when dismissing the dispatched workers. According to the second paragraph of Article 65 of the Labor Contract Law, if the dispatched worker falls under any of the circumstances specified in Item 1, Item 2 and Article 40 of Article 39 of this Law, the employer may return the worker to the labor dispatch unit, and the labor dispatch unit may terminate the labor contract with the worker in accordance with the relevant provisions of this Law. In other words, the employer can only return the dispatched worker because the worker does not meet the employment conditions, is seriously in violation of discipline and is incompetent for the job. In this way, the labor dispatch unit will terminate the labor contract with the laborer according to the relevant provisions of the labor contract and the law. If the employee does not violate the labor contract law and labor agreement, the employer shall not return the employee to the labor dispatch unit casually, and the labor dispatch unit shall not terminate the labor contract with the employee casually, otherwise it shall bear corresponding legal responsibilities. New Labor Law: How to Obtain the Certificate of Dismissal Case: A catering enterprise in Chaoyang District dismissed an employee, and the employee applied to the Chaoyang District Labor Dispute Arbitration Committee for labor dispute arbitration, demanding payment of economic compensation for the termination of the labor contract. During the trial, the lawyer hired by the company pleaded in court that the company did not dismiss the employee, but the employee never came back after leaving the company. The employee was dumbfounded because the unit gave a verbal notice when it dismissed the employee. The employee lost the case without any evidence. Later, he sued the Chaoyang District Court and lost the case.
Among the clients we received, many workers were useless or didn't ask the unit for a written dismissal certificate when they were dismissed.
Due to lack of evidence, many dismissed employees lost the opportunity to get financial compensation.
In practice, when workers can't get the dismissal certificate normally, they can take flexible measures to get the dismissal certificate. We suggest the following methods: First, in the process of handling the work handover, write down the reasons for leaving the company on the work handover, and try to get the company's seal or legal person's signature.
Some don't have a work handover form, so try to print it yourself. What you have must be the original, otherwise it is of little use.
Remember: make it in time and don't ask the company for compensation before making it. At that time, the company will be vigilant and it is unlikely to stamp.
Second, the resignation certificate is now looking for a new job, and the new unit needs a resignation certificate, which is reasonable and reasonable. It would be better if it could be stated that it was dismissed by the unit! If you can't write it, you can just write the fact of leaving. The unit will provide evidence of your reasons for leaving your job in the arbitration.
Three, the recording must be admitted to the main leaders of the company, especially the legal person, and other uses are not great. Be clear and complete.
Special reminder: pay attention to the timing of evidence collection. You should get the dismissal certificate within one or two days after receiving the notice of dismissal, and then talk about the economic compensation. Be sure to get this evidence when the unit is not too wary of you. Otherwise, the unit will be vigilant, and it will be difficult for you to get strong evidence. Therefore, it is suggested that you learn the knowledge of labor law or consult professionals in time when the dismissal warning occurs, and design a complete and thorough plan according to the actual situation to lay the foundation for your future claim. Author: Lawyer Zhang Feng-Labor Arbitration Lawyer
If employees can't meet the requirements of the company, they can be dismissed _ risk avoidance suggestions for dismissing employees.
We are an electronic R&D enterprise in Shanghai. There is a new employee in the technical department. He is currently on probation, and he will become a regular employee in two weeks. However, due to the adjustment of the company's business direction, his post has no work tasks and is basically idle. So the company decided to cancel this position and transfer him to other departments. After communication, he agreed to go. But the company wants to extend the probation period for another month to see how he adapts to the new position, but he doesn't want to. The company disagreed and decided to fire the employee. The employee thinks that the company has no reason to dismiss him, and he hopes that the company can compensate him.
Now the company has made up its mind to dismiss him, but what can be done to avoid risks? Please help me think about how to do it.
1. Combined with this case, the enterprise's intention is to terminate the labor contract with employees during the probation period. I. Relevant laws and regulations are as follows: 1. Article 19 of the Labor Contract Law: If the term of a labor contract is more than three months but less than one year, the probation period shall not exceed one month; If the term of the labor contract is more than one year but less than three years, the probation period shall not exceed two months; The probation period of a labor contract with a fixed term of more than three years or without a fixed term shall not exceed six months.
The same employer and the same worker can only agree on a probation period.
Article 21 During the probation period, the employing unit shall not terminate the labor contract, except for the circumstances stipulated in Article 39 and Item 1 and Item 2 of Article 40 of this Law. If the employer terminates the labor contract during the probation period, it shall explain the reasons to the employee.
Article 36 The employing unit and the employee may terminate the labor contract through consultation.
Article 39 The employing unit may terminate the labor contract if the employee is under any of the following circumstances: (1) The employee is proved to be unqualified for employment during the probation period; (two) a serious violation of the rules and regulations of the employer; (three) serious dereliction of duty, corruption, causing great damage to the employer; (4) 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 the employer refuses to correct it; (5) The labor contract is invalid due to the circumstances specified in Item 1 of Paragraph 1 of Article 26 of this Law; (6) Being investigated for criminal responsibility according to law.
Article 40 In case of 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 extra month's salary: (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 prescribed medical treatment period 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 it impossible to perform the labor contract, and the employer and the employee fail to reach an agreement on changing the contents of the labor contract after consultation.
2. Article 24 of the Labor Law: The parties to a labor contract may terminate the labor contract through consultation.
Article 25 The employing unit may terminate the labor contract if the employee is under any of the following circumstances: (1) The employee is proved to be unqualified for employment during the probation period; (two) a serious violation of labor discipline or the rules and regulations of the employer; (three) serious dereliction of duty, corruption, causing great damage to the interests of the employer; (4) Being investigated for criminal responsibility according to law.
Article 26 Under any of the following circumstances, the employing unit may terminate the labor contract, but it shall notify the employee in writing 30 days in advance: (1) The employee is sick or injured non-work-related, and cannot engage in the original job or other jobs arranged by the employing unit 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.
Second, the fact analysis of the case 1, employee situation: the employee is still on probation, and will become a full member in two weeks. At present, the post basically has no work tasks and is in an idle state; Agree to transfer, but disagree to extend the probation period; Compensation for the company's dismissal request shows that it is willing to continue working in the company and has a certain degree of work cooperation and awareness of rights protection; 2. Company situation: due to the adjustment of the company's business direction, the work tasks are insufficient (the objective conditions on which the contract is concluded have changed). After consultation with the employees, they are willing to retain the employees and adjust their posts, but they request to extend the probation period and refuse to become a regular employee as originally planned. Because the probation period has not been agreed with the employees, they decide to dismiss the employees; Iii. Suggestion on avoiding the risk of the case: 1, and confirm whether to sign a labor contract: if you sign a written labor contract with employees, you can avoid the risk in double indemnity; 2. Signing content of labor contract: confirm the signing period of labor contract, job title, probation period, salary standard, probation period assessment and whether there is a post adjustment explanation. If the post name and the start date of the probation period are not clearly stipulated in the contract, the corresponding probation period can be implemented according to the provisions of the Labor Contract Law and assessed according to the actual post; 3. Evaluation of probation work: evaluate the probation work of employees, conduct evaluation interviews, and ask employees to sign for confirmation. If the employee doesn't sign, it's better to have a third person present to witness and keep records for evidence; 4. Collect written evidence: including employee's performance, employee's evaluation and superior's evaluation since joining the company, focusing on checking whether there are violations of discipline and discipline, whether there are written punishment documents, and dealing with them in combination with the company's rules and regulations; According to the Labor Law and the Labor Contract Law, an enterprise needs to prove that the employee does not meet the employment conditions when terminating the labor contract with the probationary employee. Therefore, it is particularly important to collect evidence in this regard, and employees cannot be dismissed just by verbal dismissal; 5. Investigate the matching degree between employees and the positions to be transferred: Although the enterprise and employees can negotiate for job transfer, the enterprise needs to comprehensively consider the employees' own abilities and qualities to confirm whether the employees are suitable for the positions to be transferred. If employees do not have the core competence required for the post to be transferred, they need to be transferred cautiously to avoid unnecessary disputes in the later period; If employees have a strong comprehensive ability and have the core abilities and qualities needed for job transfer, they don't have to worry too much about the length of the probation period. 6. Sign labor contract change procedures: sign a change agreement with employees on matters related to post change, and both parties will keep it; A certain inspection period can be agreed upon in the negotiation. If the post requirements cannot be met during the inspection period, the salary will be reduced. 7. Dissolve the labor contract through negotiation: communicate with employees deeply, understand the interest relationship, use the advantages of human resources to recommend jobs in other companies, and make employees resign voluntarily, and make good work records. Of course, everyone is happy; 8. Prepare for the worst: communicate with the boss in advance, inform the actual situation and the existence of risks, make psychological and economic preparations, and compensate the employees if negotiation fails. In the final analysis, we should pay more attention to the handling of daily employee relations, the standardization of our own system, the risk avoidance of contract signing, work hard at ordinary times, and not cram for the last minute, let alone treat employees casually regardless of laws and regulations.
If an employee can't meet the requirements of the company, he can be fired. What should I do if the employee fails to go to work after the company sends out the notice of dismissal?
After the company issued the notice of dismissal, employees didn't come to work without going through the formalities. How to deal with it? We are an advertising company in Fujian. At the beginning of 20 14, we recruited a graphic designer Li. Li is lazy by nature. His address is only 20 minutes away from the company, but he is often late, 22 working days a month 18 days. At the end of the probation period, in view of his performance, the company decided to extend Li's probation period for one month (oral notice), but he was late again and again during this month, and the company decided to dismiss him. After we informed Li of his dismissal decision, he didn't come to work the next day, did not go through any formalities, and called the company, saying that he didn't recognize the previous notice of extending the probation period and asked the company to give him dismissal compensation.
I would like to ask: What are the risks of our company in this incident? What other remedial measures or circumvention measures can we take? I. Analysis: According to the case and the questions raised, the risk is briefly analyzed as follows: 1. Extend the probation period. Article 19 of the Labor Contract Law clearly stipulates that "the same employer and the same employee can only agree on a probation period", and even if they are transferred, re-employed or have poor work performance, they cannot agree on or extend the probation period. This is a potential risk that exists in many units. If the employee arbitrates, the arbitration tribunal will probably rule that the company "Article 83 If the employer violates the provisions of this law and agrees with the employee on a probation period, the labor administrative department shall order it to make corrections; If the probation period in violation of the law has expired, the employer shall pay compensation to the employee according to his monthly salary during the probation period.
2. The reasons for rejection are not sufficient. Whether Li's repeated lateness meets the dismissal conditions stipulated by the company system depends on whether the system has been discussed and approved by the trade union or the workers' congress. Will it be publicized after the approval of the leaders? Organize Li to learn sign language? Generally speaking, being late for many times does not reach the level of dismissal. In addition, what criticism and education have been carried out for being late for many times, and where is the evidence? If there is no evidence to prove that being late is allowed by the company, employees shall not be dismissed on this ground.
3. There is a problem with the dismissal process. According to the regulations, if an employee is dismissed, he/she should first notify the trade union or employee representatives, listen to their opinions, and then send them to the employees in writing. 2. Suggestion: In view of the above risks, we can avoid or remedy them from the following aspects: 1. Fire him for serious violation of discipline. One month late 18 days, not coming to work for several days in a row, and so on. It should be considered as a "serious violation of the rules and regulations of the employer" in the company's regulations, and then he can be dismissed according to the second paragraph of Article 39 of the Labor Contract Law, and he does not have to bear economic compensation.
2. Reject him with false evidence. Current candidates, such as resume, interview, certificate, experience, etc. If you carefully discover or investigate, it is easy to find some fictional facts. If the evidence is sufficient, it can be dissolved according to the first paragraph of Article 26 of the Labor Contract Law, "by means of fraud, coercion or taking advantage of a person's danger, the other party can conclude or change the labor contract against its true meaning".
3. Negotiate the amount of compensation. Because it is illegal to extend the probation period, if the above two items are inconvenient to implement, we will negotiate with Li for compensation. According to the Labor Contract Law, it is best to reduce his salary by 50% through negotiation. If you want more, you can only take the arbitration procedure and never promise.
4. Improve the corresponding rules and regulations. In particular, the company's reward and punishment management methods, which behaviors should be punished according to what kind of punishment, should be improved and described clearly according to the violations encountered at ordinary times, or what level of punishment can correspond to the same violation for how long.
5. Ensure that the process and evidence are sufficient. We should not only criticize and educate employees for their usual minor violations of discipline, but also let them write a check, send a notice when necessary, and try to get them to sign. How to "verbally notify" employees when the system is issued? Only in this way can it be easy to dismiss without being confused.
6. Consultation is a permanent and effective measure. Perfect system, process and sufficient evidence, reasons, facts, etc. Sometimes it is conceivable, but it is difficult to achieve. At this time, it is necessary to make good use of negotiation and communication skills, especially the arbitration procedure is time-consuming and laborious, which affects the reputation and re-selects the job. The result may not be better than negotiation.
Of course, it is determined from the angle, and the salary is lower than the theoretical calculation, but it also takes care of the employees' emotions appropriately. For example, in theory, the compensation should be around 7000,5000, and negotiation is enough, not 3000 or 6900.
Three. Conclusion: In fact, it is very simple to get the other party to agree to your terms in labor disputes. You have to make it clear from facts, reasons, evidence and legal basis, that is, "be accurate when you hit a snake." How can he move? Therefore, it is very important to study and thoroughly understand the legal provisions (this case mainly involves Articles 19 and 83 of the Labor Contract Law), and it is also very important to master the facts and evidence of employees' usual work and performance. Even if you make concessions, you will not be praised by employees, otherwise the work of HR department will not be done well.