Several fans left messages in the background asking how to deal with the company's "reasonable and legal" dismissal of employees in the end-of-year assessment? Do you accept it calmly or stand up for it? For such questions, the author hereby writes and counts it as a unified reply.
Approaching the Spring Festival, many companies are in full swing to carry out the year-end summary, the commendation of the commendation, the promotion of the promotion, even if the benefits in 2023 are not good, the bosses should tighten their belts to create a prosperous scene for employees "I know your pay", "gun in hand, follow me", "I have you will have it". If you can meet such a wise man, then tie your shoelaces and run along, the Year of the Dragon is right!
However, there are thousands of kinds of flowers, and there are thousands of different people! Some bosses don't open source from the market, but they start to think about throttling from their employees! Just like the "Layoff Plan" in the recently released movie "Annual Meeting Can't Stop", which is a vivid portrayal of these bosses.
Of course, if employees really encounter this kind of company plan similar to the elimination of the last position, do not panic, we have to return to the perspective of the "Labor Contract Law", and judge with legal thinking, what should we do? In fact, to judge whether the last elimination measures taken by the company are legal, we must look at the following two aspects:
First of all, it depends on whether the last elimination rules adopted by the company have a basis for rules and regulations or the agreed terms of the labor contract.
In accordance with the provisions of Article 4 of the Labor Contract LawRules and regulations and major matters involving the vital interests of employees shall be discussed by the workers' congress or all employees, put forward plans and opinions, and determined through equal consultation with the trade union or employee representatives. After the system is formulated, it should be publicized or notified to the workers. Therefore, if the company promulgates similar management rules, it strictly adheres to the democratic procedures and has been approved by the employees. When an employee is subject to system regulations or labor contract provisions, and the company unilaterally terminates the labor contract, there is a high probability that it will be supported by the adjudication authority. On the contrary, the company is more likely to face illegal termination.
Second, if there is no support from the rules and regulations or the agreed clauses of the employment contract, whether the unilateral termination of the employment contract taken by the company is lawful shall be judged by the provisions of the Labor Contract Law.
If the employee satisfies the provisions of Article 39 (Fault Dismissal), Article 40 (Fault Dismissal) and Article 41 (Economic Layoff) of the Labor Contract Law, and the employee does not have the circumstance of Article 42 (the restriction clause that the employer shall not unilaterally terminate the labor contract), the employer may exercise the right of unilateral termination.
Of course, the specific circumstances faced in labor disputes may vary greatly and cannot be generalized, and accurate judgment must still be based on the specific circumstances faced by individuals. Therefore, if an employee encounters a similar dispute, he or she should seek help from a legal professional in a timely manner if his or her own judgment is unclear. If a company wants to unilaterally terminate an employment contract with an employee in this way, it should first assess the legal risks to avoid labor disputes.
About author:Lawyer Wang Shigang, a lawyer in Beijing, has 12 years of practical experience in the legal industry, and has served as the general counsel of a central enterprise and a corporate lawyer.
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