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China - Substantive requirements for dismissals


Substantive requirements for dismissals (justified and prohibited grounds) - China - 2017    

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Obligation to provide reasons to the employee: No
Remarks:
  • The ECL does not establish any obligation on the part of the employer to state the reasons for dismissal to the employee. However, prior to dismissing a worker, the employer shall notify the labour union of the reasons: art. 43 ECL.


Valid grounds (justified dismissal): worker's conduct; worker's capacity; economic reasons
Remarks:
  • Art. 40 ECL (ordinary dismissal): list of reasons related to the worker's conduct, worker's capacity, economic reasons.
    See also Art. 39 ECL (summary dismissal).

    See also Art. 18 and 19 of Implementing Regulations of the PRC Employment Contracts Law.


Prohibited grounds: marital status; pregnancy; maternity leave; temporary work injury or illness; race; sex; religion; nationality/national origin; age; trade union membership and activities; disabilities; ethnic origin
Remarks:
  • - Art. 42 ECL prohibits dismissal of :
    (1) a worker who is engaged in operations exposing him to occupational disease hazards and has not undergone a pre-departure occupational health check-up, or is suspected of having contracted an occupational disease and is being diagnosed or under medical observation;
    (2) a worker who has been confirmed as having lost or partially lost his capacity to work due to an occupational disease contracted or a work-related injury sustained with the Employer (3) a worker who has contracted an illness or sustained an injury, and the set period of medical care therefore has not expired;
    (4) a female employee in her pregnancy, confinement or nursing period;
    (5) a worker who has been working for the Employer continuously for not less than 15 years and is less than 5 years away from his legal retirement age;
    (6) a worker who finds himself in other circumstances stipulated in laws or administrative statutes.
    See also art. 26 of the Law of the People┐s Republic of China on the Protection of Rights and Interests of Women which prohibits the dismissal of any female employee on the grounds of marriage, pregnancy, maternity leave or nursing unless the employee requests the termination. Dismissal on the ground of pregnancy is also prohibited in the art. 4 of the Regulations Concerning the Labor Protection of Female Staff and Workers (1988).
    - Dismissal based on trade union activities is prohibited: art. 52 (1) of the Trade Union Law of the People's Republic of China, 1992 as amended by Order of the President of the People's Republic of China, No 62, 27 October 2001 and last amended on 27 August, 2009.

    - Ethnic origin, race, sex, and religious belief and disability are not listed as unlawful grounds for dismissal in the ECL. However, they are listed as prohibited grounds of discrimination in employment in article 3 of the Employment Promotion Law [EPL]
    (see also art. 12 of the Labour Law; art. 27 EPL on gender equality; art. 29 EPL and 38 of the PRC Law on the protection of disabled persons, 1990 as last amended on 24 April, 2008).
    - Art. 31 EPL: Rural workers who move to urban areas to seek employment shall enjoy equal labour rights to urban workers and shall not be subjected to discriminatory restrictions.


Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave; confirmed injured workers; older workers/workers on the verge of retirement; workers on temporary leave following an occupational disease or a work injury
Remarks:
  • Under art. 42 ECL, it is prohibited to dismiss:
    (1) a worker who is engaged in operations exposing him to occupational disease hazards and has not undergone a pre-departure occupational health check-up, or is suspected of having contracted an occupational disease and is being diagnosed or under medical observation;
    (2) a worker who has been confirmed as having lost or partially lost his capacity to work due to an occupational disease contracted or a work-related injury sustained with the Employer
    (3) a worker who has contracted an illness or sustained an injury, and the set period of medical care therefore has not expired;
    (4) a female employee in her pregnancy, confinement or nursing period;
    (5) a worker who has been working for the Employer continuously for not less than 15 years and is less than 5 years away from his legal retirement age.

    For worker's representatives, see art. 52 (2) of the Trade Union Law :
    If the labour contract of a worker or staff member is terminated due to his participation in trade union activities, the administrative department for labour shall order that the victim be reinstated, his remuneration payable during the period of the termination of the labour contract be made up, or that a compensation two times the amount of his annual income be given.