Identification Of Serious Violation Of The Rules And Regulations Of The Employer

According to item(2)of Article 39 of the labor contract law of China,if a worker seriously violates the rules and regulations of the employer,the employer may terminate the labor contract.Due to the abstract and general description of the word "serious" in the legislation,and the lack of clear and specific provisions,the situation that the employing unit uses the clause to terminate the labor contract maliciously and damage the legitimate rights and interests of the workers appears,which also brings the applicable confusion to the judicial practice.In addition to the conclusion of the introduction,this paper is divided into four parts:The first part,"serious violation of the rules and regulations of the employer and the significance of its identification".Serious violation of the rules and regulations of the employing unit means that the employees within the unit do not abide by the rules and regulations on organizing production,labor and management formulated by the employing unit,and perform acts that do not meet the requirements of the rules and regulations,resulting in the inability of the labor relationship to continue to be maintained.For the nature of this behavior,because the theory of serious breach of contract limits the exertion of the employer’s operation autonomy,and the theory of serious breach of law places too high a legal position on the rules and regulations,it is more reasonable to adopt the compromise theory,that is to say,the behavior should be treated according to the situation.In case of violation of the inherent content of the labor contract,the employee shall bear the liability for breach of contract.In case of violation of the code of conduct and other terms,the liability shall be determined according to whether the employee knows the content of the terms.If we want to determine the fact of serious violation of discipline by workers,we need to make clear the examination standard.An accurate examination of the standards will help to safeguard the legitimate rights and interests of workers and establish a harmonious and trustful labor relations.The second part,"the legality of the rules and regulations of the employer".The examination of the legality of the rules and regulations of the employer is the premise of determining whether the rules and regulations are violated,including the examination of its contents and procedures.In terms of content legality,it is required that the rules and regulations shall not infringe upon the basic human rights of workers,not violate the mandatory requirements of the law,and in principle shall be consistent with the agreed content of the labor contract;in terms of procedural legality,it is required that the rules and regulations meet the democracy and publicity.Rules and regulations are not invalid due to procedural defects for the following reasons: first,the formulation of rules and regulations is essentially a civil legal act.Although the failure to perform democratic procedures or publicity procedures violates the mandatory norms of the law,because the norms are compulsory rather than prohibitive,it will not lead to the acts being invalid of course.Second,the democratic procedure and publicity procedure are stipulated by law to avoid the employer’s using rules and regulations to infringe upon the rights and interests of workers.If the procedural defects do not affect the realization of this purpose,then the effectiveness of rules and regulations should still be recognized by law.Third,the democratic procedure and the publicity procedure are the formal elements rather than the substantive elements of the rules and regulations.If the lack of the formal elements does not affect the substantive legitimacy and rationality,then it would be contrary to the original intention of legislation to deny the effectiveness of the rules and regulations.The third part,"the rationality review of the rules and regulations of the employer".The rationality of the rules and regulations of the employer refers to that the text language is clear and normative in form and operable,and the management method in content is equivalent and does not violate the public cognition and value judgment in order to meet the management requirements of the production activities of the employer.The lack of the current legislation on the rationality of the rules and regulations may lead to the improper intervention of the employer on the behavior of the workers.In order to achieve better effect of the implementation of the rules and regulations,the rationality should be reviewed.The judicial organ has the right to review the rationality of rules and regulations for the following reasons: first,the law is a highly generalized criterion,which can require the procedure to be legal,but cannot guarantee the entity to be reasonable;second,the trade union or employee representative is in a relatively weak position,so it is difficult to push the rules and regulations from the procedure to the entity to be reasonable only relying on its strength,so the judicial organ should be empowered to enable it to In the judicial practice,the rules and regulations should be properly recognized.Third,empowering judicial organs to review the rationality of rules and regulations can promote the user units to pay attention to the self-improvement of rules and regulations.When reviewing the rationality of the rules and regulations,we can focus on whether the rules and regulations take into account the nature of the industry and the characteristics of the post,whether the punishment is equivalent,and whether the principle of the final means of dismissal is followed.The fourth part,"the judgment of whether the violation of the rules and regulations of the employing unit is" serious ".The empirical analysis shows that the types of violation of discipline include violation of duty of loyalty,violation of attendance system,violation of code of conduct,disobedience to post adjustment,disruption of production and operation management order,and damage to the interests of employers.The review elements in judicial practice include the legality and clarity of the contents of the rules and regulations,the legality of the rules and regulations procedures,the legality of the labor contract termination procedures and the effectiveness of the evidence.In addition,it will review the severity of the disciplinary violations in light of the nature of the workers’ behaviors and the losses caused.Due to the characteristics of personal and continuous labor relations,employers and workers are closely linked.For the employer to terminate the labor contract behavior,can be seen as to prevent its interests continue to suffer from the infringement of workers.Therefore,when judging whether the violation of discipline is "serious",we can start from the perspective of prediction and interest balance,judge whether the laborer will continue to bring obstacles to the performance of labor contract,and whether the balance of interests between the employer and the laborer can be maintained,and combine the subjective intention of the laborer,the rescue measures of the laborer,the nature of the industry and the post Comprehensive consideration of characteristics and hazard consequences.The possible innovations of this paper are as follows: firstly,redefine the connotation of serious violation of the rules and regulations of the employing unit,and clarify the complete identification process of serious violation of the rules and regulations of the employing unit,so as to provide ideas for the smooth application of item(2)of Article 39 of the labor contract law in judicial practice;secondly,provide specific factors about how to judge whether the violation is "serious",so as to provide a solution to the dilemma of different standards in judicial practice.The shortcomings of this paper are as follows: firstly,due to the limited number of selected cases,the conclusions of this paper may not be applicable to all cases;secondly,due to the lack of theoretical basis and practical experience,the problem can not be thoroughly studied,which will be further improved in the future.