A Research On Legal Regulation Of Retaliatory Dismissal

Retaliatory dismissal is the dismissal by employers for the purpose of retaliating against workers. Legal regulation of retaliatory dismissal is essentially a limitation of the right to dismiss, covering the collective and individual labor relations. In china, Academic study of labor law in dismissal regime focused on the protection of illegal dismissal, and the concern is less for retaliatory dismissal. So far, there is no legal norm on retaliatory dismissal. The "Labor Contract Law"2008is an important law norm on the adjustment of labor relations. The law defined the relationship of rights and obligations of employers and employees, regulated the labor relation’s establishment, alteration, rescission or termination, and made complex labor disputes appeared before have a clear legal basis. The law defined the legal right to dismiss employers, but still not for identification and legal remedies of retaliatory dismissal. And in real life, there are a lot of these behaviors. It is due to the lack of appropriate legal norms, leading to disputes, and even occurs different judgments for similar cases.Foreign legal systems have more rules of retaliatory dismissal, and also more in-depth study. In the collective labor relations, Japan’s unfair labor practice system is more typical. The system strictly limited unfair labor practices by employers. Prohibiting adverse treatment is actually limiting employer’s retaliatory dismissal. In individual labor relations, unfair dismissal system and whistleblower protection law are more typical. The procedure and remedies in these two systems, can better protect the legitimate rights and interests of workers. These systems are usually summed up from legal practice, from the program to the entity, which have important reference value for the construction of the law in retaliatory dismissal.Therefore, this paper analyzes the current shortage of labor law in the dismissal system of the existing legal system. And by drawing on foreign legal systems and learning useful place, we try to put forward feasible measures and suggestions. This paper is divided into four parts:The first part of this paper, mainly study the conception and the basic characteristics of retaliatory dismissal, by comparison with the illegal dismissal, and economic layoffs. Meanwhile, starting from the theory of dismissal system, this part try to research basic theory on retaliatory dismissal, through three aspects, namely freedom of dismissal, dismissal protection and public policy exception,to elaborate.The second part of this article studies the extraterritorial norms of labor law in the legal aspects of retaliatory dismissal. This part studies the legal system of retaliatory dismissal, from Japan, Britain, Australia to Taiwan, China, including the unfair labor practice system and the unfair dismissal law and whistleblower protection system in common law.The third part of this article is based on the perspective of the existing labor laws and regulations, and is combined with typical cases related to retaliatory dismissal.Then analysis the shortcomings of our current legal system on retaliatory dismissal. These shortcomings are mainly embodied in the absence of collective labor relation norms, legal remedy procedure and methods and whistleblower protection norms.The fourth part of this article is based on a study of extraterritorial laws and regulations, combined with our current problems of labor law. Then the author try to put forward feasible proposals, including the construction of unfair labor practices system, consummate procedures and methods of legal remedy to retaliatory dismissal and the establishment whistleblower protection.