| The rules and regulations of employers as the code of conduct and norms that must be followed by laborers are important basis for employers to determine the rights and obligations of employers and employees,and they are mandatory for workers.Therefore,laborers often have to bear certain consequences in violation of the rules and regulations of the employer.In particular,when the behavior of workers who violate the rules and regulations reaches a "serious" level,they may face the risk of being dismissed.The legitimacy of the employer to exercise the right to dismiss according to the rules and regulations is not only that “the laborer seriously violates the rules and regulations of the employer” is the legal cause clearly stipulated in the Labor Contract Law,but also the nature of the labor rules and regulations,the special attributes of labor relations and the loyalty of the person is determined.In the judicial practice of our country,there are widespread disputes that employers arbitrarily dismiss workers according to the rules and regulations.The main reason for the large number of disputes is that the current labor legislation will almost determine the decision of the workers to “seriously violate the rules and regulations”.The employer has been given specificization in the form of rules and regulations,but there is no law that provides guidance on how the employer’s rules and regulations should restrict the behavior of workers and which behaviors can become the object of regulation.At the same time,the problems of the non-independence of the trade unions in China and the imperfections in the internal democratic procedures of the employers are significant.The examination and supervision of the employers’ rules and regulations in the dismissal of labor disputes by the administrative and judicial organs are mostly focused on whether the procedures are legal,which leads to Infringement of the lawful rights and interests of workers by the employer through the rules and regulations has occurred.Even in judicial practice,local courts are inconsistent in determining whether workers’ behaviors are in line with “serious violations of rules and regulations” – cognition of whether or not to examine and examine the seriousness of workers’ faults,especially In terms of the basis and criteria for determining the “severity” of the worker’s fault behavior,which factors should fall within the scope of judicial review,whether the factors of judicial consideration can be typed and systematic,and the principles that judicial recognition should follow There are differences in the methods and methods adopted.The above difficulties have brought many difficulties to the trial of cases in practice,and it is difficult to effectively protect the rights and interests of laborers.Employers often suffer from the liability for illegal dismissal due to the lack of rules and regulations.As a basic social relationship,labor relations is not only related to the living and living conditions of laborers,the business development direction of employers,but also the health and stability of the social and economic order and the long-term stability of the country.The dismissal system is one of the important contents of the adjustment of labor legislation.The essence of the dismissal system is the legal setting that the state tries to find a balance between employer autonomy and employer employment rights.Existing judicial practice and extraterritorial related dismissal protection systems,such as Germany’s identification of workers’ faulty behaviors need to have "significant reasons",France’s "real and serious reasons for determining workers’ breach of contract" and the detailed provisions of Taiwan’s dismissal in Taiwan Etc.,both reflect the efforts of the state to balance the interests of both employers and employees.China’s current labor legislation and market mechanism itself limits the limitations of employers in dismissing laborers according to the rules and regulations,and determines the necessity of systematizing and standardizing the identification of “laborers seriously violating the rules and regulations of employers”.This means that for employers,the dismissal of workers with serious violations of the rules and regulations should not only meet the procedural and substantive requirements of the law,but also have reasonable justifications,and should also meet the principle of balance of interests and substantive justice.Specifically,on the basis of the effectiveness of the employer’s rules and regulations,the legitimacy of the employee’s dismissal for violating the employer’s rules and regulations must be based on the “fault” of the worker and the “serious” degree of fault.Not all minor faults can be dismissed for violating the rules and regulations.For judicial judgments,when judging whether a worker has serious faults,the judiciary should first not only examine the formal and substantive rules and regulations on which the employer is based,but also ensure the legitimacy and rationality of the rules and regulations.It should also follow the criteria of substantive justice,proportionality,and prediction principles,follow the combination of objectivity and openness,and combine the comprehensiveness and difference to comprehensively measure the basis of all factual factors affecting the seriousness of workers’ behavior to make the most fair referee. |
