A Study On The Legal Regulations Of The Employer’s Right To Discipline

Disciplinary action by employers is the most important part in the employment management of enterprises.Almost all employers stipulate the code of conduct of employees and relevant disciplinary measures through labor rules and regulations.For example,"demerit record","fine","demotion" and "dismissal" are commonly seen in the employer’s labor rules and regulations and widely applied.These disciplinary measures play an irreplaceable role in regulating the behavior of workers and maintaining the management order of employers.With the abolition of the Regulations on Reward and Discipline of Enterprise Employees in 2008 and the implementation of the Labor Contract Law,there is no longer any direct regulation on the disciplinary action by employers in the Chinese legislation at a national level.Many factors,such as the absence of legislation,wide applicability of discipline,and contradictory relationship of equality and opposition between labor and capital,lead to debates about employers’ right to discipline in the academia and the practical field.However,labor disputes arising from the discipline do not stop because of the aforementioned disputes.It is time to discuss the historical moment of formulating the "Basic Labor Standard Law".Guided by the realistic "true issue",the study on the legal regulation of the right to discipline by employing units is conducted to contribute to the architecture of our labor legislation.This paper,entitled "Research on the Legal Regulations of the Employer’s Right to Discipline ",is divided into five chapters,except the introduction and conclusion.Chapter I is an empirical analysis of the exercise of right to discipline by employers.On the basis of defining the concept of employers’ right to discipline,the exercise of employers’ right to discipline in China is discussed through empirical research methods.First,existing academic viewpoints will be summarized,wherein the concept of employers’ right to discipline right will be defined,that is,employers are to impose disinterested sanctions on workers who violate their obligations based on the subordination of labor relations,and are subject to restrictions imposed by laws and regulations,collective contracts,and labor rules and regulations.The exercise of right to discipline has the characteristics of group,sanction and right formation.Subsequently,the similarities and differences between right to discipline and related concepts will be discussed.The disciplinary system is considered a key part and guarantee for the implementation and enforcement of employers’ labor rules and regulations labor rules and regulations,which are an important carrier of the employer’s right to discipline.The rights to discipline,transfer and dismissal are all personnel management rights of the employer,where overlaps and concurrence in specific rights are observed.Through comparative analysis,the similarities and differences between the right to discipline and the rights to transfer and dismissal are clarified,including the differences in the source,content and influence on labor relations.Finally,case statistics are used to carry out empirical analysis.Four practical problems of the employer’s right to discipline are summarized,namely controversial legality,unclear scope of exercise,chaotic disciplinary exercise procedures,and lack of relief paths for improper discipline.This paper formulates argumentation that is based on the practical problems of employers’ right to discipline.Chapter II focuses on the theoretical justification of the employer’s right to discipline,with analyses done in two aspects: rationality and legitimacy.Reward without discipline is not enough to deter;discipline without reward is not enough to motivate.The rational root of the right to discipline is firstly analyzed from the psychological,management and economic perspectives.Its normative function,educational correction function,warning function and the role of maintaining the employer’s management order will then be explored.However,the rationality of the extra-legal perspective does not suffice in finding the base point for the use of right to discipline in the legal norm system,integrate the right to discipline into the current legal framework of our country,and design the norms for exercising this right.After that,the legal basis of discipline right is analyzed with respect to the normative system of law.By comparing several representative theories,it is found that the theory of intrinsic right emphasizes the interests of employers but ignores the rights and interests of workers;Contract theory and collective agreement theory emphasize the equality between the labor and capital and are limited by agreement,but it downplays the authenticity of workers’ expression of will and are divorced from the current situation of labor relations.The theory of maintaining enterprise order focuses on the legitimate purpose of maintaining enterprise order,but it merely serves as the "emperor’s new clothes" for the interests of employers-enterprise order.The theory of legal authorization focuses on legal norms,but disregards the differences between the right source rules and restrictive rules.Therefore,we should allow a comprehensive interpretation of the legal basis of the employer’s right to discipline by combining the reasonable factors from the theory of intrinsic right,of contract,of collective agreement and of maintaining enterprise order,and propose the "comprehensive theory"-the employer’s right to discipline is the sanction right enjoyed by the employer by virtue of the identity of the business entity,based on the labor relationship,with an aim to maintain the management order of the employer,take the behavior that violates the laborer’s obligations as the disciplinary object,and pay due attention to the laborer’s participation.In addition,the right to discipline of the employer requires awareness of the balance of interests between employers and employees,and that of between the said two parties and society.Following this logic,from the perspective of interest balance,the substantive regulation and procedural regulation of the exercise of right to discipline by employers are studied,and the judicial relief path for workers under the situation of improper discipline is constructed.Chapter III discusses the substantive regulation of the exercise of the right to discipline by employers.Substantive regulation mainly includes defining the carrier of disciplinary rules,limiting the reasons and scope of disciplinary action,and limiting the types of disciplinary measures.Specifically,the disciplinary rules of employers should form a code of conduct for all employees through their collective bargaining or democratic participation.The carrier of disciplinary rules includes collective contracts and labor rules and regulations,while individual labor contracts are not suitable as the carrier of disciplinary rules because they lack benefit-balance mechanism and cannot satisfy the authenticity of the expression of will.When the collective contract is inconsistent or conflicts with the labor rules and regulations,the general solution is that the collective contract takes precedence over the labor rules and regulations,and the principle of "benefiting employees " is applied in special circumstances.As far as the content of substantive regulation is concerned,the carrier of disciplinary rules needs to specify the code of conduct of employees and the consequences of violation,that is,to determine the disciplinary reasons and corresponding disciplinary measures.Disciplinary reasons should focus on the obligations of employees,follow the principle of job limitation,and avoid improper and excessive intervention in the personal life of employees.In compliance with the above principles,the employer should make the obligations of employees specific and clear through labor rules and regulations in combination with the enterprise category,industry attributes,business scope,scale and other factors.The types and scope of disciplinary measures are hot topics in the academia and practical field.This paper holds that the disciplinary measures mainly include reprimand,disciplinary economic punishment,disciplinary transfer,disciplinary dismissal,but do not include suspension and damage compensation.The main reason for opposing the fine of employing units lies in equating it with administrative fine.Although named as a "fine",it is actually "salary deduction",which is completely different from "administrative fine" in the subject of exercise,the nature of behavior,the basis of discipline and the function of rights.Suspension is not suitable as a disciplinary measure for the employer because of the uncertainty and uncontrollable damage to the employees’ right to occupational stability.Due to its compensation function,damage compensation is completely different from the normative function,educational correction function and warning function of discipline,it is therefore not suitable for employers to take disciplinary measures.Chapter IV deals with the procedural regulation of the employer’s right to discipline.Procedural regulation is the basic requirement for employers to exercise the right to discipline.Although Germany,France and Japan have their own emphases when constructing the disciplinary system of employers given their respective legal traditions,historical factors,trade union system and other reasons,they generally show a convergence feature,that is,not only do they pay attention to the formulation procedures of labor rules and regulations,but they also set eyes on the procedural regulation of discipline,for the purpose of full protection of the employees’ right to distinguish and other legitimate rights and interests.To learn reasonable lessons from overseas experiences and take the specific practices in China into comprehensive consideration,this paper argues that the procedural regulation exercised by the employer’s right to discipline should follow the neutrality of the disciplinary implementer and clarify the bottom procedural rules.Generally speaking,the right to discipline is enjoyed by the employer,but its exercise requires implementation by a specific department or institution.To ensure the fairness and justice of disciplinary action,it is suggested that the right to discipline should be implemented by a disciplinary committee composed of the senior management of the employer,representatives of the personnel department,representatives of the legal department,representatives of competent departments and the employee.This is to ensure the neutrality and democracy of disciplinary subjects.In addition,the employer should follow the bottom procedural rules when exercising the right to discipline: First,abide by the agreed procedures,that is,if the employer and the employee stipulate the procedures to be followed in exercising the disciplinary right through collective contracts or labor rules and regulations in advance,the employer is obliged to abide by the corresponding rules in specific disciplinary incidents.Second,the employer should fulfill the obligation to inform the employees about the disciplinary system,disciplinary reasons and decisions.Third,give employees the right to argue,and guarantee the rights of labor to state,defend and refute.Fourth,establish the rules of trade union consultation,that is,the employer must consult the trade union before making a disciplinary decision.In case of different opinions by the trade union,the employer shall study and decide among them and give a written feedback to the trade union.Fifth,follow the rules of timeliness.To urge the employer to exercise the power to discipline in time,correct the behavior of employees violating the discipline,and maintain the harmony and stability of labor relations,it is suggested that the time limit for exercising the right to discipline shall be clarified and applied to extinctive prescription.Chapter V discusses the judicial relief of improper discipline by employers.Justice is the last line of defense to safeguard the legitimate rights and interests of employees.Since the employer’s improper disciplinary action infringes the worker’s reputation right or property right,the justiciability of improper disciplinary action should not be denied on the grounds of "internal behavior".In terms of the scope of judicial acceptance,this paper focuses on the analysis of the lawsuits against the effectiveness and the reputation right of disciplinary decisions.Among them,the lawsuit against the effectiveness of disciplinary decision is applicable to all disciplinary labor disputes,and the disciplinary dispute of reprimand type is not excluded from the scope of accepting cases because of its slight influence.At the same time,with the prescription system of labor arbitration,the interests of both employers and employees can be balanced to a certain extent.The lawsuit against the right of reputation emphasizes that the employer must adhere to the principle of seeking truth from facts and be cautious and "open" to avoid infringing on the legitimate rights and interests of employees.Finally,the judicial review of disciplinary labor disputes is explored in this paper,with the conclusion that it is appropriate to adopt the double review standard of "legality + rationality” for a comprehensive evaluation after weighing the interests-the former emphasizes that the disciplinary system and the exercise of the right to discipline shall not violate laws and regulations,labor rules and regulations,collective contracts and other relevant provisions,while the latter begs for the consideration of the social cognitive ability of a specific region,the loss of employers,the nature of disciplinary behavior,the subjective fault of workers and other factors.