Guia à lei do emprego em China - 2008 (parte II)
Por Gregory Sy, grupo legal de Grandall
V. Dispensas da terminação e do `'
1. Sob que circunstâncias pode um empregado ser terminado sem observação?
Um empregador pode terminar um empregado sem exigência para a observação nas seguintes situações:
- durante o período do probation, se o empregado for determinado ser inadequado para a posição;
- o empregado rompe materialmente réguas e regulamentos do empregador;
- o empregado acopla no dereliction de dever sério, de graft ou de corruption causando os danos substanciais aos interesses do empregador;
- o empregado estabeleceu um relacionamento do emprego com um outro empregador e esse relacionamento afeta a conclusão de suas tarefas e recusa remediar apropriadamente a situação após a notificação do empregador;
- fraud usado empregado em conclir o contrato labour; ou
- o empregado é sujeito à investigação criminal.
2. Sob que circunstâncias deve um empregado ser dado a observação de terminação?
Um empregador deve dar observação escrita prévia ou um pagamento de 30 dias' no lieu disso, se terminar o contrato labour sob as seguintes situações:
- o empregado é incapaz de executar seus deveres originais ou deveres atribuídos novamente, após o retorno da licença médica ou de ferimento non-trabalh-relacionado;
- o empregado é incompetent e remanesce incompetent após o treinamento ou o ajuste da posição; ou
- a ocorrência de uma mudança principal das circunstâncias objetivas em que foram confiados ao assinar o contrato labour, e o empregado e o empregador são incapazes ao concordado com termos modificados do contrato labour.
3. Sob que circunstâncias pode um empregado terminar o contrato labour sem observação?
An employee may unilaterally terminate the employment contract without requirement for notice in the following instances:
- employer fails to provide labour protections and working conditions in accordance with the labour contract;
- employer fails to pay remuneration in full and on time;
- employer fails to pay social security payments in accordance with the law;
- employer’s rules and regulations violate laws and regulations, harming the employee’s rights and interests;
- employer uses fraud, coercion or the employee’s unfavorable position to conclude the contract; or
- other situations set out in laws and regulations.
4. In what instances is compensation required and how much?
Severance compensation is due in a number of situations, which are summarized below:
- termination by employee under situations which result in his right to terminate the contract immediately (Item 3, discussed previously);
- termination by employer under situations which require 30 days’ prior written notice (Item 2, discussed previously);
- the employee is terminated due to restructuring or difficulties in business operations;
- the labour contract is terminated after being proposed by employer and there is mutual agreement on termination;
- a fixed-term labour contract expires (except where employee refuses to renew the contract on terms equal to or better than previously concluded);
- termination of labour contract due to revocation of employer’s business license; and
- termination of labour contract due to bankruptcy.
Employers must pay severance in the amount of one month’s salary for each year of service, with half a month’s salary for each partial year.
If the employee earns more than 3 times the average monthly wage of the locality, then the compensation will be capped at 3 times the average monthly wage, up to a maximum of 12 months.
5. Can employees be ‘laid off’?
Under the following circumstances, labour contracts may be terminated due to business difficulties:
- restructuring due to the Enterprise Bankruptcy Law;
- serious difficulties in production or operations;
- a staff reduction is necessary due to changes in production, technical innovation or adjustment of management operation style; or
- other major changes in economic circumstances relied upon at the time of conclusion of the labour contract, rendering them non-performable.
For large-scale layoffs (20 or more employees, or in smaller organizations where employee layoffs are less than 20 employees but this accounts for 10% or more of the total employees), the employer must first explain the circumstances to the trade union or all employees (where there is no trade union) 30 days in advance, and may reduce the workforce only after consideration of the opinions of the trade union or employees and reporting the restructuring plan to the labour administration.
VI. Labour Arbitration and Dispute Resolution
1. How are labour disputes resolved in China?
Like most jurisdictions, mediation is the preferred method of dispute resolution, however, this is a voluntary process. The Labour Arbitration Law provides that mediated settlement agreements for salaries, medical fees for job-related injuries, severance and penalties may be entered into court for enforcement.
Labour dispute claims, according to the Labour Law and the Labour Arbitration Law, must first be submitted to the local labour arbitration committee located in the jurisdiction of the employer. The labour arbitration committee must then render its award within 45 days after the dispute has been accepted.
Arbitration decisions are final for employers in the following instances: salaries, medical fees for job-related injuries, severance, and penalties, where the disputed amount does not exceed an amount equal to 12 months’ local minimum wage.
Employees and employers (with the exception of those instances set out previously) may within 15 days of the arbitration award submit the dispute to the people’s court for hearing.
2. What is the statute of limitations for bringing a labour dispute claim?
The limitation period is 1 year after the employee knew or should have known that their rights have been infringed, however, if the dispute occurs under an existing labour contract, the limitation period does not start until the labour contract has expired or has been terminated.
This is the second part of the Grandall Legal Group Guide to Employment Law in China, last week we published the first part.
Gregory M. Sy is a partner / foreign counsel with Grandall Legal Group. His practice includes general business advisory for SME’s in China, particularly in the areas of international corporate structuring and transactions. Representative clients include the Consulate of the United States of America in China (Shenyang), Embassy of Brazil, various publicly listed companies (NYSE, LSE, DAX, and BSE), along with numerous other SME’s operating in a wide range of industries. Mr. Sy obtained an LL.B. from the University of Victoria, and is admitted to the New York bar. Gregory publishes extensively on a variety of China legal issues for international and local publications, and has recently acted as chief editor for Martindale’s China Law Digest. You can contact Gregory at gregsy@grandall.com.cn or learn more about the firm at www.grandall-profile.com.
April 23rd, 2008 at 4:31 am
Lets say a company has a reason for dismissing an employee, for example the employee stole something, slept on the job, cursed the manager etc.
Question: would the company be required to present any PROOF? Otherwise the employee would claim the company is lying and most likely will be backed by the courts.
Joel
April 25th, 2008 at 5:35 pm
Joel,
Labor disputes will usually first be submitted to labor arbitration. And indeed, if the dismissed employee files for arbitration against the employer for illegal termination, then the employer will have to prove that its reason for dismissal was a legal one.
This is quite reasonable - if one could dismiss someone without any evidence, then there is no need for laws on dismissal. Do note that in many such cases, even if you do not have any documentary evidence, then witness statements may also be helpful.
April 26th, 2008 at 12:57 am
What is the standard judgment award by a court if the guidelines above aren’t followed? Sixty days’ salary? Ninety days?
My impression is that some firms may be awarding their discharged employees with severance packages that are just outsized enough to discourage that employee from bringing a claim. If the employee threatens suit, the employer threatens to withdraw the offer. Since this raises the risk and the cost of disputing the circumstances of dismissal, the employee meekly accepts the severance.
April 26th, 2008 at 5:32 pm
With regards to Joel post and Maarten reply ;
Recently I had 2 cases whereby we had to pay a huge sum of compensation to the employee or face going to court simply beause the employee do not wish to back down on the counter offer by my company. Here is what I think …
Case 1.
Employee A actually resigned from the company after working for us for 9 months. His sudden departure was that the company was unfair to him by not giving bonuses where other technical guys in his team had gotten them plus he was also not allocated his yearly bonus where other team mates had them. In this instant we were asked to pay him 1/2 month salary for the month he had worked for us *eventhough he had not completed his task timely + 2 months salary being his year of service in the company - 97 and 98. He did also claim for his bonuses but this we managed to cancell it during mediation.
Case 2 - Beijing Branch.
Employee B was not supportive in his work in the office at all. He delays his work schedule given and never able to complete task given on time. The company felt he was delaying the entire team and therefore terminated his contract with the company by giving him 30days notice but asked him to leave immediately.
However he went to the labour office and initiated a case. In the end we had to pay him another month salary as compensation simply because he started working for us in July 2007. The labour office can not accept our argument that he did not produce what was expected as its hard to prove even if the other team mates were to sign a letter. His reasoning was that his capability was up till that particular limit and that the company had given too much work that cant be accomplished.
At the end of the day this is how I look at the mediation between employer and employee in disputes - what if the employees do not wish to back down ? Most employers especially foreign employers like me dont have the time and energy to play with these people in courts and hiring a lawyer would be an even more expensive scenario. So what do we do ? In the end we just simply PAY to get less “ma fan”.