Southern Perspective Shenzhen

Firing someone on the spot？ Feels good right? Here is another interesting case highlighting these questions:

- When do you have a right to fire someone?

- What is the proto-call in this case?

August 1^st, 2008, a Shanghai neighborhood security guard was fired in the afternoon after disagreeing with his company to be transferred to another district in the morning. He had a labor contract from Dec 1 2007 – Nov. 30 2008. The company thought the guard had made a serious breach of company regulations when he did not comply right away. The guard believed he was fired unfairly and without good reason.

The court explained, employers need to discuss matters with their employees and explain the reasoning behind their ideas. The court also concluded the company performed an “improper act”. By notifying the guard in the morning of his transfer with no previous discussion and then subsequently firing him in the afternoon when he disagreed was unjustifiable. The company was ordered to reinstate his job and pay back wages from August 1^st to the time he is reinstated.

Let’s look at labor laws concerning this: ( in British English )

Labour law – Article 25

If a labourer is under any of the following circumstances, the employing unit may cancel the labour contract with him:

(1) Having been proved not up to the requirements for recruitment during the probation period;

(2) Having seriously violated labour discipline or the rules and regulations of the employing unit;

(3) Having caused great losses to the employing unit through gross neglect of duty or malpractice for personal gains; and

(4) Having been investigated for criminal responsibility in accordance with the law.

AS WELL AS …

Labour law-Article 26

In any of the following circumstances, the employing unit may cancel the labour contract, however, a written notice shall be given to the labourer concerned 30 days in advance:

(1) Where a labourer is unable to take up his original work or any work specially arranged by the employing unit after completion of the period of his medical treatment for illness or not work-related injury;

(2) Where a labourer is unqualified for his work and remains unqualified even after receiving a training or after readjusting the work post; and

(3) Where the objective conditions taken as the basis for the conclusion of the contract have changed so greatly that the original labour contract cannot be carried out, and no agreement on modification of the labour contract can be reached through consultation by the parties.

With all these details above, it is difficult to out right fire someone without some solid, recorded reasons…  These laws above cover only canceling employment contracts. The matter of compesation is a whole other matter. Look into your local labor laws and find out what is expected.  The little bit of leg work might get you out of a long standing bout over 10,000 yuan.