The Study On Employee Legal Protection Against Wrongful Dismissal

The Dismissal involves in employees’ labor right of the Constitution,and even the right of their subsistence, and also involves in employers’business management right. In this conflict, how to protect employees againstthe wrongful dismissal and realize the win-win between employers andemployees is an important part of building socialist harmonious laborrelations in our country. However, because some important provisions of ourLabor Contract Law are not clear enough, or even opposite with each other,there came to be many different judicial judgements for same cases, whichmakes employers and employees can foresee the final outcome of a trial.Under the situation of unclear law terms and weak labor union, someemployers may take the advantages of their strong management position tomisuse their dismissal right and unilaterally dismiss employees who are inthe managed or controlled positions. This paper will make the analysis on the behavior of wrongful dismissaland the current “after-dismissal” remedies in our country, and will propose a“before-dismissal” preventive method. By analyzing the reason of wrongfuldismissal and the defects of related law terms, making recommendations toimprove Labor Laws’ provisions, dismissal procedures and protection systemrelating to wrongful dismissal as soon as possible.This paper’s structure and the main contents are as follows.The first part is about the analysis of the two labor dispute casesbetween the same one employee and the same one employer, and points outthe status of the legal remedies and defects of the system design for wrongfuldismissal. By the analysis of labor relationship in the law theory, pointing outthe reason that the current judicial situation comes to be, and the huge gapbetween the judicial decision and the expectations of employees. Byanalyzing the relevant provisions of the Labor Law and Labor Contract Law,summing up the concept of wrongful dismissal, features and three forms,namely fault dismissal, non-fault dismissal, economic dismissal.The second part is about the analysis of historical development of laborrelations legislation and the present situation in France, Germany and theUnited States, and draw a common conclusion that the healthy developmentof labor relations needs both national legislation and trade unions dual roles, trade union’s role is very important and indispensable.The third part is about the analysis of the social background of deepening thesocialist market economic system and social transformation, and points outthat in order to achieve a win-win between social efficiency and social justice,to eliminate the large numbers of wrongful dismissal and to strengthen theprotection from the wrongful dismissal of employees are necessary. Takingthe consideration on the defects of legislation and its adverse effect onjudicial judgements, proposing how to play the both roles of legislation andtrade union.