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China Wronful Dismissal/Unfair Dismissal-employment law and practice

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Wrongful dismissal, also called wrongful termination or wrongful discharge, is an idiom and legal phrase, describing a situation in which an employee's contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of employment, or a statute provision in employment law. It follows that the scope for wrongful dismissal varies according to the terms of the employment contract, and varies by jurisdiction. Note that the absence of a formal contract of employment does not preclude wrongful dismissal in jurisdictions in which a de facto contract is taken to exist by virtue of the employment relationship. Terms of such a contract may include obligations and rights outlined in an employee handbook.

Because of the employer's wrongful dismissal of workers, directly threatening the realization of labor rights of workers, it is valued by national labor law. Most Western countries, public sector employees enjoy steady work protection rights, the law makes specific dismissal restrictions must be clearly defined "good reason" to dismiss employees. the public sector with the provisions of this protection is based on the theoretical foundation has a loyal employee, integrity, self-discipline, or employees to complete the considerable work has been carried out, specific the fact that human capital investment. And in the private sector, the provisions of protection of the work is relatively small, private entrepreneurs, according to their own interests, often some of the workers do not need an excuse to fire through, as an excuse for violation of labor discipline employees , technical failure, such as enterprise restructuring will be workers laid off. for wrongful dismissal, China's current law only provides for certain special groups generally have the right to resist certain types of dismissal, not the rights of the working group to make provisions.
Features and wrongful dismissal Elements

Wrongful dismissal is the employer violates the law, public policy, employment contract or dismissal of workers based on improper grounds, and damaging to the behavior of workers. From the definition of wrongful dismissal can be seen, wrongful dismissal with the following three characteristics: the causes of wrongful dismissal is the employer violates the law, public policy, labor contract or as a reason for dismissal based on improper grounds, which is composed of real elements of wrongful dismissal, wrongful dismissal is the damage to the legitimate rights and interests of laborers , thereby violating the employment rights of workers, the nature of their behavior can be breach of contract, tort, it can be based on equity considerations, the damage to the interests of workers but also the interests of both material and spiritual interests and wrongful dismissal to the worker damage may require the employer to workers compensation or compensation.

I believe that the wrongful dismissal of the constituent elements in the following areas: the employer for wrongful dismissal is the dismissal of workers at the time, no "justification" subjective fault. Employer unlawfully dismissed workers to be dismissed for good cause workers such as the lifting of both parties, in line with straight discharge, notice of discharge, the relevant provisions of Economic retrenchment removed. do not have written in the form of non-compliance with disarmament period, such as the employer fails to 30 days in advance written notice to the employee or fails to pay an additional workers a monthly wage. German labor law: the lifting of the two sides should abide by the labor contract the termination period, including basic termination termination period shall be extended by a period of denunciation and trial of the termination period, if the termination period of non-compliance , the termination is invalid. not tried that obligation, the employer should be the subject of dismissal, dismissal period duration of the fire caused by the treatment process and related matters such as financial compensation clearly inform the workers, but not told. the employer has illegally , contrary to public policy discharge or breach of labor contracts and collective behavior of the lifting of the contract.

Employer for wrongful dismissal is when labor contracts there in the fault, therefore, the employer to assume the main responsibility for wrongful dismissal.

dismissal invalid, continue to perform. Employer for wrongful dismissal of workers, continue to perform its dismissal of no effect. To continue to fulfill its responsibility, the contract is subject to the decision to achieve the purpose, the actual performance of the contract responsibility system in the embodiment of the principle. As long as there continue to fulfill the contract requirements and possible, the parties should continue to perform the contract. but the labor contract, continue to perform only applies to employers, and not applicable to workers because the labor contract, labor and workers as workers the personal can not be separated, if the employee continues to perform the labor force payment obligations, is bound to restrict the personal freedom of workers with "no forced labor," the internationally accepted labor contract principles.



 

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