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- Human Resources and Payroll in China 2016-2017 (5th Edition)
Immediate Termination for InappropriateBehavior of the Employee
Generally, there are only five circumstances in which an employer can terminate an employee
immediately and with no additional compensation. In every case, the dismissal must somehow be
attributable to inappropriate behavior of the employee.
1. The employee is deemed to commit a serious violation of the company rules.
The key here is for the employer to show that the violation of the company rules was serious. Make
sure the company rulebook clearly stipulates what is considered a serious breach, and how many
minor breaches constitute a serious breach. However, even though the company rules may deem
a certain breach to be serious, the court will have the final say in the matter. You may still need to
provide justification for your decision to the judge.
2.The company suffers a serious loss that can be attributable to the conduct of the employee.
In this situation, the company would have to convince the judge that the loss was due to the
negligence or inappropriate conduct of the employee, and that the loss can be considered serious.
3. The employee is convicted of a criminal offence during the term of the labor contract.
In practice, the employer may only know about the conviction of an employee if a prosecution
for a criminal offence in some way involved the company, or if it is informed by the court or other
authority during the prosecution process.
Note that the employer may not terminate an employee for having a prior criminal record. It is the
responsibility of the employer to find out about any irregularities in the employee’s past prior to hiring
him/her. It should be possible to find this information on the ‘dangan’ of the individual.
4. Labor contract signedby employer under false assumptions or coercion fromthe employee.
Themost common situation falling under this category is due tomisrepresentation of information on
the resume by job applicants. For instance, falsely claiming to have a degree or other qualification is
a relatively common phenomenon. We would suggest employers to require job applicants to bring
the originals of graduation certificates and licenses obtained and also sign a copy of each one to
be held by the employer’s HR department. Additionally, the company should ask the employee to
sign a statement that allows the company to request details about the employee from previous
employers or educational institutes. Adding this requirement to the job description may deter
potential employees frommaking false claims about their professional and educational background.
5. Employer’s interests harmed due to the employee taking up a post at a separate entity.
If the employer discovers that an employee is working on behalf of another company and it negatively
affects the employee’s job performance, the employer must first request the employee to terminate
the other position. Only in the event that the individual refuses to stop carrying out the second role
may the employer terminate the labor contract.