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Comparative Research On The Legislative Regulations On Remedies For Dismissal Between P.R.China And The United Kingdom

Posted on:2014-05-14Degree:MasterType:Thesis
Country:ChinaCandidate:H F ZhaoFull Text:PDF
GTID:2256330401477934Subject:Labor and Social Security Law
Abstract/Summary:PDF Full Text Request
The topic of this thesis lies on the comparison of the remedies for dismissalsystems of P.R.China and the United Kingdom, which share the consistency andsimilarity in the dismissal protection systems. In the legislative design of dismissalprotection systems, the two countries both originated in the relevant regulations of theInternational Labour Organizations(ILO), including the significant conventions andrecommendations on Dismissal Protection. Though there are differences lying inspecific provisions of the two countries because of different legislative systems,comparison could still be carried in the legislation of the two countries with therelatively common sources of law. Particularly, the unique dismissal systemsconducted in the United Kingdom, wrongful dismissal and unfair dismissal, refer tosignificant contribution to the constructure of remedies for dismissal system of ourcountry. Therefore, the introduction and first chapter of this thesis introduce thebackground of this research and give a general comparison of the dismissal protectionsystems of the two countries.Towards the conducts of illegal dismissal, there are two common remedymeasures adopted globally, namely, reinstatement and compensation. From theperspective of legislation and legal practice,the second chapter and the third chapterconcentrate on the analyses and comparative research respectively, referring to these two remedy measures.Based on the Article10of Convention No.158of ILO,“whenfinding the termination is unjustified, to declare the termination invalid and/or orderor propose reinstatement of the worker” should be considered as the primary remedyof this dismissal. Under circumstances that “they are not empowered or do not find itpracticable in accordance with national law and practice”,“payment of adequatecompensation or such other relief as may be deemed appropriate” should be orderedto the worker. Both of the two countries in comparison take the two remedy measuresas the main legislative remedy for illegal dismissal. However, doubt widely lies in thefunctions and effects of the two measures in the comparison of the judicial situationsfor the two countries.Though taken as the primary remedy measure facing the illegal dismissal,reinstatement is not regarded as the most significant measure, which is also proved inthe judicial practice of the two countries, with extremely low contribution in statisticsand poor remedy effect. Therefore, reinstatement ruling is seldom ordered by theemployment tribunals of the United Kingdom. In comparison, with no clear definitionof circumstances of impossibility of resumption of labour contracts, the labourarbitrations and courts of our country made a great deal of mandatory orders for theresumption of labour relations. However, these resumption of labour relationship withpoor quality did not effectively contribute to the development of harmonious labourrelationship.Comparatively, pecuniary compensation has replaced reinstatement, functioningas the primary remedy in judicial practice. For the two parties keep in the state ofconfrontation in the long-term proceedings of litigation, the foundation of trust andconfidence has broken down in most cases. Therefore, pecuniary compensationshould be taken as the replacement of reinstatement, with significant function injudicial practice. Nevertheless, distinguished from the loss damage compensationsystem of the United Kingdom, there are more unreasonable aspects in the punitivecompensation system utilized in our country, which is worthy attention and reflection.Therefore, as discussed in the forth chapter of this thesis, it is suggested that thecompensation system of our country should learn from the classification compensation system of the United Kingdom, to build up a damage remedycompensation replacing the punitive compensation system. By the development ofdiversified channels of remedy for dismissal, more measures could be taken in theconstruction of harmonious labour relationship.
Keywords/Search Tags:Dismissal Protection, Remedy for Dismissal, Reinstatement, Compensation
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