Judicial Determination Of Laborers Seriously Violating The Rules And Regulations Of Employers

The second paragraph of Article 39 of the labor contract law of the people's Republic of China(hereinafter referred to as "the labor contract law")stipulates that the employer can directly terminate the labor contract according to the "serious violation of the rules and regulations of the employer by the workers",without prior notice.In practice,on the one hand,employers often terminate labor contracts at will on the basis of "serious violation of rules and regulations of employers by workers",and they do not need to pay economic compensation,which seriously damages the interests of workers,resulting in a large number of workers' rights being infringed;on the other hand,because the article 39 of the labor contract law on wrongful dismissal is sealed The method of closed enumeration leads to some workers' serious violation of the professional ethics not stipulated in the rules and regulations,and also causes certain economic losses to the enterprise.However,it does not conform to the provisions of "workers' serious violation of the rules and regulations of the employer" and "serious dereliction of duty,malpractice,causing significant damage to the employer",so the employer cannot be relieved Labor contract is not conducive to protecting the employer's employment autonomy.Therefore,from the current judicial practice,it is of great significance to determine the standard of "serious violation of the rules and regulations of the employer".The identification of "serious violation of the rules and regulations of the employer" is mainly carried out from the following aspects:First of all,the identification of the way of publicity of rules and regulations.The premise of determining whether the laborer "seriously violates the rules and regulations of the employer" is whether the rules and regulations are formulated and whether the publicity procedure is legal and compliant.However,because the labor contract law does not make detailed provisions on the publicity procedure and publicity method,the court is in dispute when determining the publicity method of the rules and regulations of the employer.There is no consistent answer to which way of publicity is legal.Through the analysis of the reasons for the judgment,it is found that the fundamental purpose of the publicity of rules and regulations is to enable the workers to fully understand the specific content of the rules and regulations,so that the workers can make a definite expectation of their own behavior.Therefore,only taking formal publicity means can not fully understand the workers The degree ofrules and regulations,but also a substantial means of publicity-training and learning rules and regulations for workers.Secondly,about the professional ethics not stipulated in the rules and regulations and the identification of "serious violation of the rules and regulations of the employer".Due to a large number of workers' serious violations of professional ethics in practice,the rules and regulations of the enterprise have not been regulated,and some of the workers' serious violations of professional ethics are also difficult to be interpreted as major dereliction of duty as stipulated in Article 39,item 3,of the labor contract law.However,the explanation of "workers' serious violation of the rules and regulations of the employer" is more flexible,so the court generally considers that this situation constitutes "workers' serious violation of the rules and regulations of the employer".This kind of approach is not very persuasive,so it is not only inconsistent with the general logic of legal interpretation to expand the interpretation of rules and regulations without any basis,but also may lead to the abuse of the right of dismissal by employers and the arbitrary dismissal of workers.However,it is also very unfavorable for the enterprise not to dismiss the workers in this situation.Therefore,from the legislative level,the article 39 of the "labor contract law" can be added to cover the basic provisions,which not only solves the problem of the application of the law,but also helps to protect the legitimate rights and interests of workers.Thirdly,the subjective fault degree of the workers and the determination of "the workers seriously violate the rules and regulations of the employer".Based on the inclined protection of workers,it is required that the behavior of workers in violation of rules and regulations should have serious subjective fault in order to achieve "severity".Due to the lack of clear standards and regulations on the determination of the severity of subjective fault in the labor contract law,the court has different opinions when judging the severity of subjective fault of workers.After analyzing the reasons of the court's judgment,the paper concludes that the main factors to be considered when the court judges the severity of the fault are: the number of violations of rules and regulations by the workers,the post responsibilities of the workers,and the absence of the employer management.Finally,the damage consequence of the laborer's behavior and the determination of "the laborer seriously violates the rules and regulations of the employer".In determining whether the workers constitute "serious violation of the rules and regulations of the employer",not only the subjective fault of the workers is required to reach the "severity",but also the damage consequences of the workers' behaviorsare required to reach the "severity".When determining the damage consequences of labor behavior,the court mainly divides the damage consequences into material damage and non-material damage.The court considers whether the damage consequences of labor behavior reach "severity" based on the classification of damage consequences of different behaviors.For the material damage court,the main consideration factor is the amount of damage,but not the decisive factor;for the non-material damage court,the main consideration factors are: the size of the scope of influence of the non-material damage,the duration of the non-material damage and the difficulty of the elimination of the non-material damage.