Judicial Determination Of The Cause Of Dismissal Of "The Significant Change Of Objective Circumstance"

The cause of dismissal of "the significant change of objective circumstance" is a part of the system of non-fault termination of labor contract in China.It aims to allow the employer to terminate the labor relationship unilaterally when the objective situation on which the labor contract is based changes significantly,which makes the labor contract unable to continue to be performed,and the employer cannot reach an agreement on the change of labor contract.At present,China is facing a series of profound changes,such as the sluggish recovery of the world economy,the frequent occurrence of local conflicts and turbulence,the aggravation of global problems,and the entry of chinese economic development into the new normal.In this context,the business risks and changes brought by the external environment faced by the employer as the market main body increase significantly,while the construction between the employer and the employees facing the objective situation on which the labor relations are based has changed or even disappeared under the influence of the external environment,so in practice,there are more and more cases involving the dismissal cause of "significant changes in the objective situation".However,from the perspective of the arrangement of judgment documents in practice,there is a lack of a unified standard for judicial determination of the dismissal cause of "significant change in objective situation" in practice,and different courts generally have "different judgments in the same case" in the case of dismissal cause of "significant change in objective situation".Therefore,in order to enhance the predictability of the dismissal cause system of "significant changes in objective circumstances",it is necessary to start from the judicial determination of the dismissal cause system of "significant changes in objective circumstances" in the relevant judicial documents,combined with the similar provisions of the labor law theory and other department laws,and then analyze the recognition thinking of the dismissal cause system of "significant changes in objective circumstances".From the perspective of Article 40(3)of the labor contract law of China,which stipulates the dismissal cause of "significant change in objective circumstances",the dismissal cause of "significant change in objective circumstances" includes threeelements of qualification,one is the change in objective circumstances on which the labor contract is concluded(hereinafter referred to as "objective circumstances"),the other is that the significant change in objective circumstances is enough to cause the change the labor contract can't be performed continuously(hereinafter referred to as "the significant change cause the labor contract can't be performed"),and the third is that the employer and the employee need to negotiate on the content of changing the labor contract(hereinafter referred to as "negotiate with employees").In this paper,the author will combine the judicial cognizance of the court in practice with the theory of labor law to analyze the cognizance of these three elements.For the determination of the element of "objective circumstance",it is found that the "objective circumstance" advocated by the employer can be divided into three categories: force majeure,external factors and the employer's independent operation.The court has no difference on the determination of force majeure,which belongs to "objective circumstance" in the dismissal cause of "significant change of objective circumstance".However,there are some differences between the external factors and the the employer's independent operation.Based on the analysis of the external factors and the judgment documents of the "objective circumstance" advocated by the employer,the external factors are identified as "objective circumstance" based on the reason that the labor contract belongs to the continuous contract,and the employer's independent operation is not identified as "objective circumstance" based on the dismissal protection system and the principle of "strictly abiding by the contract".For the determination of the element of "major change makes the labor contract unable to be performed",aiming at the three situations of "the significant change cause the labor contract can't be performed" advocated by the employer can be divided into three categories: post revocation,change of employment mode and change of work place.The employer should consider whether the employer still needs the work provided by the original post and whether the employer's labor cost is negative.Whether the size of the burden and the change of the work place will have enough negative impact on the performance of the labor contract as the criteria for its determination.For the determination of the element of "negotiate with employees",this paper analyzes the problem that some courts only review the element of "negotiate with employees" in the form,draws the necessity of substantive review of the element of "negotiate with employees",and puts forward the core significance of substantive review of the element of "negotiate with employees".