Research On Serious Violation Of The Labor Rules And Regulations

In the process of dealing with the labor economic compensation dispute,the court often needs to judge the legality of the employer’s dismissal,the main legal basis is Article 39 of China’s Labor Contract Law,which stipulates six kinds of situations of discharge caused by employees’ fault,the serious violation of the labor rules and regulations is the most common cause for the enterprise to dismiss employees.There are two aspects to consider: one is that the rules and regulations are valid;the other is that the employee has carried out the violation of discipline and seriously violated the rules.As for the validity of labor rules and regulations,Article 4 of China’s Labor Contract Law stipulates that it should go through democratic procedures and be publicized or informed to employees.However,due to the vague legal provisions,scholars and local courts have not reached a consensus on the valid requirement.There are two points of disagreement: one is the legality of the rules and regulations without democratic procedure;the other is whether the court should examine the reasonability.Different understandings of the legal character lead to different understandings of the formulation procedures.The legal character of labor rules and regulations is format contract.The legality and the reasonability are a unity of contradiction,and they should learn from each other’s strengths.The democratic procedure should be negotiated but decided unilaterally,that is,after fully listening to the opinions of the employees and the decision is made by the employer.Therefore,democratic procedures should be a formal requirement,rules and regulations should have it in principle,which with defects in democratic procedures should be allowed to make corrections through elements such as reasonability,knowledge of employees.The reasonability of contents should be regarded as one of the valid requirements of labor rules and regulations,and the principal recognition standard should also be clear.Not all disciplinary violations are serious,and only the most serious can be punished by dismissal.However,most courts do not pay enough attention to the severity of the employee’s violations of rules,and the standards for identification of seriousness are not uniform,which will lead to disputes in practice.The reason for this problem is the generality of legislation.Therefore,it is necessary to clarify the subject of seriousness identification,strengthen the substantive review,standardize the formulation of labor rules and regulations,and clarify the principled identification standard of seriousness,that is,following the principles of multi-evaluation,forecasting,bottom-line,and examine with multiple factors.