Research On Legal Relief Methods Of Illegal Dismissal

Dismissal is a very important part of labor relations.According to the relevant provisions of various national laws,the dismissal of workers must have due cause,follow due process,and at the same time should give workers the right to obtain relief.China's Labor Law stipulates two remedies for illegal dismissal: reinstatement and economic compensation.However,in practice,it is often difficult to effectively implement the reinstatement judgment in China,and the application rate of the reinstatement relief method is very low.The stipulation of compensation liability for illegal dismissal is relatively simple,and the calculation standard is not perfect.By considering the relevant cases,starting from the current situation of China's labor legislation and drawing lessons from the legislations of foreign countries,we can put forward suggestions to improve the legal remedies for illegal dismissal in our country in view of the above shortcomings.Firstly,for the determination of illegal dismissal,it is clear that when defining whether the employer's dismissal is lawful and effective,both the reasons for dismissal and the procedures for dismissal should be considered.Secondly,in view of the fact that the workers' right to subsistence and other labor interests are difficult to be protected during the disposal of dismissal disputes,and the enforcement of reinstatement rulings is difficult,temporary relief measures for illegal dismissal can be constructed,including entity relief measures.The law gives workers the right to continue working during the period of dismissal objection and establishes behavioral protection measures in procedural law.Thirdly,in order to improve the way of reinstatement relief,it is necessary to clarify the criteria for determining that the labor contract can not continue to perform,and to include the factors affecting the basis of cooperation between employers and employees in the scope of determination;to apply reinstatement relief typically;to establish an alternative execution mechanism so as to improve reinstatement.Finally,to improve the compensation relief,we can refine the calculation standard of economic compensation according to the severity of illegal dismissal and set up discriminatory penalty compensation.