Research On Retaliatory Discharge Of Labour Law

In recent years,labor disputes are increasing daily.Among them,cases about the retaliatory discharge are also more and more.In most of these cases,the employer dismissed the employee with a legitimate cause.The Labor Contract Law is an important law which regulates labor relations.It stipulates the situation which the employer has the right to dismiss,and also stipulates the situation which the employer is prohibited from dismissal.However,it has no regulations about retaliatory discharge.Therefore,as there is no relevant law in this case,the judicial personnel can only judge whether the dismissal is legal or illegal within the existing legal framework.Due to the different legal professional literacy and cognition of judicial personnel,different judgments were made in the same case.It not only harms the interests of employees and social public interests,but also seriously damages the judicial authority.Therefore,this article attempts to expound the extraterritorial experience of retaliatory dismissal such as United States and Taiwan,re:flect on the shortcomings of this system in China,and make relevant recommendations.First of all,this paper proposes to add a case in which the employer can not dismiss the labor contract law in the coming year;(1)Proclaiming or exercising the rights stipulated by laws and regulations in accordance with the law,such as paying labor remuneration,improving workplace conditions,shortening overtime hours or undertaking social insurance liabilities,Participating in trade union activities or collective treaty activities,engaging in activities as labor representatives,etc.;(2)The employer infringes on the rights and interests of laborers,and the laborers file complaints,arbitrations or litigation according to law;(3)Reporting and complaining about the employer's management personnel or other personnel according to law(4)refusing to implement an employer's illegal or other improper work instructions;(5)performing legal obligations in accordance with the law,such as witnesses appearing in court to testify;(6)laws and administrative regulations Other situations.At the same time,it is recommended to refer to the constituent elements of general infringement when determining the specific retaliatory dismissal.Secondly,in terms of improving the relief procedures and relief measures,this paper suggests that if the court decides that the retaliatory dismissal is invalid and continues to perform the labor contract,if the employer refuses to perform within a certain period of time,the employee can apply directly to the court for enforcement with the economic compensation.In addition,the employer's retaliatory dismissal shall pay economic compensation in accordance with the economic compensation standard of 3 times or more and 10 times or less,and the law shall stipulate a maximum limit.Thirdly,this paper proposes to establish a prosecutor and complainant protection law,clearly identify the criteria for reporting complaints,and provide effective legal remedies for prosecutors and complainants.