In recent exchanges with many HR practitioners, a phenomenon has caught our attention: many human resources managers are confused and say that they are clearly operating in accordance with the relevant provisions of the Labor Contract Law, but the final ruling is still lost.

The reason behind this is worth pondering - the reason why the vast majority of labor dispute cases are lost is not because the enterprise is unfamiliar with the law itself, but because it does not grasp the procedural requirements and substantive details behind the legal provisions. This article focuses on three types of dismissal situations that enterprises generally consider to be "absolutely legal", and analyzes the key compliance elements that are easily overlooked.

1. Dismissal for "serious violation of rules and regulations": details determine success or failure

"Dismissal for serious violations of discipline" is the most commonly used reason for dismissal by enterprises, but it is also the situation with the highest rate of losing the lawsuit. Many HR believe that with employee handbooks and disciplinary violations, they have a chance to win. However, the reality is that a considerable number of employee handbooks in the arbitral tribunal were found invalid due to procedural flaws, and most of the rest lost points in the chain of evidence and procedural issues.

(1) Rules and regulations have not been subject to the dual procedures of "democracy + publicity"

As everyone knows, without these two statutory procedures, this manual is not even considered evidence in the arbitration tribunal.

Statutory requirements: Article 4 of the Labor Contract Law clearly states that rules and regulations must go through two procedures to be legal and effective:

1. Democratic procedures: Rules and regulations shall be discussed by the workers' congress or all employees, plans and opinions shall be put forward, and determined through equal consultation with the trade union or employee representatives;
2. Publicity procedures: Rules and regulations must be publicized or informed to all employees to ensure that every employee knows the content.

Real case: (2024) Jing 0115 Min Chu No. 25147 A technology company in Beijing dismissed an employee on the grounds that he "seriously violated the labor discipline stipulated in the Employee Handbook". However, during the trial, it was found that the "Employee Handbook" was only delivered to employees through Feishu, never held a general meeting of employees or a general meeting of employees, nor did it consult with employee representatives, and employees never signed to confirm receipt. In the end, the court found that the rules and regulations were not formulated through democratic procedures and could not be used as the basis for terminating the labor contract, and the company's termination was illegal.

Lu Heng's view: If the rules and regulations are only unilaterally formulated by the enterprise, without statutory democratic procedures and publicized to the workers, they can only be regarded as unilateral documents within the enterprise in the legal sense, and do not have the legal effect as the basis for employment management and the trial of the adjudication organ. Using these documents as the basis for terminating the labor contract is very easy to be found to be illegal in arbitration or litigation due to lack of legal basis.

(2) Lack of quantitative standards for disciplinary violations

"Poor work attitude", "not cooperating with team work", "adverse impact on the company" - such subjective vague expressions are common in employee handbooks. Dismissal of employees based on such clauses has a very high loss rate.

Statutory requirements: Disciplinary violations must be specific, quantifiable, and evidentifiable, and there must be a clear progression of disciplinary violations, and dismissal cannot be directly caused by a small mistake. For example, the correct way to write is: "Being late/leaving early more than 5 times per month is a general violation of discipline and a written warning will be given; If a total of 3 written warnings are received in a year, it is a serious violation of discipline, and the company has the right to terminate the labor contract" and "If the employee causes direct economic losses of more than 5,000 yuan to the company due to personal reasons, it is a serious violation of discipline".

Real case: (2023) Hu 01 Min Zhong No. 4487 A company in Shanghai used employees as employees "In view of the fact that during your tenure in the company, you have made work mistakes, low efficiency, bad attitude, refused to cooperate with performance improvement plans and other disciplinary violations, which have seriously violated the company's rules and regulations." Dismiss the employee on the grounds of "dismissal. During the trial, the company could only provide a "warning letter" sent to the employee, but could not prove the specific disciplinary violations of the employee, nor could it explain the quantitative standard of "bad work attitude". The court held that the company's rules and regulations did not have clear quantitative standards, and the termination had no factual basis, which was illegal termination.

Lu Heng's view: When the employer uses subjective descriptions such as "bad attitude" as the basis for disciplinary punishment, if the rules and regulations do not set clear quantitative criteria for such behavior, it will be difficult for the adjudication authority to accept the accusations.

（三）证据链条不完整，程序保障缺失

许多HR辞退员工时，仅凭自制考勤表或领导的主观评价，便认为"证据确凿"。然而在仲裁庭上，这些往往被认定为无效证据。更关键的是，不少企业在发现员工违纪后直接发辞退通知，完全未给予员工申辩机会，程序上直接违法。

合规要求： 违纪证据必须形成完整闭环，且必须履行申辩程序：

1. The evidence must be objective and verifiable: for example, the clock-in record must be confirmed by the employee, the fact of disciplinary violation must have a confirmation sheet signed by the employee, a written warning receipt, and chat records, recordings, monitoring, and loss certificates must form a complete evidence chain;
2. Employees must be given the opportunity to defend: After discovering disciplinary violations, the "Notice of Disciplinary Violation" should be sent to the employee to inform the employee of the fact of the violation, give the employee a reasonable time to defend, and keep the defense record;
3. It must be dealt with in a timely manner: After the violation of discipline occurs, it must be dealt with within a reasonable period of time, and it cannot be dismissed after half a year or one year, otherwise it will be deemed invalid.

Real case: (2021) Hu 0151 Min Chu No. 6542 A company in Shanghai dismissed employees on the grounds of "long-term absenteeism". However, the company can only provide its own attendance sheet, cannot provide employee confirmed clock-in records and absenteeism reminder records, and has never verified the reason for absenteeism with employees or given them a chance to defend. In the end, the court found that the company's evidence was insufficient and the termination was illegal.

Lu Heng's view: In labor dispute resolution, the arbitral tribunal and the court determine the facts of the case on the only basis for determining the facts of the case, not the subjective statement of either party. When terminating a labor contract on the grounds of absenteeism, the employer bears an unshirkable burden of proof, and must provide objective materials such as attendance records confirmed by employees, complete leave approval process records, and effective reminder notices to form a complete chain of evidence.

2. Dismissal for "incompetent work": the statutory process is interlocked

"Incompetent work" is the second most commonly used reason for dismissal, and it is also the hardest hit area by losing lawsuits. Many HR people mistakenly believe that employees can be directly dismissed if their performance is not up to standard, but they do not know that Article 40 of the Labor Contract Law sets strict pre-procedures for dismissal of incompetent work.

(1) The statutory complete process for dismissal of incompetent work

1. Establish clear and quantifiable job competency standards confirmed by employees in writing when joining the company;
2. Through objective and fair assessment, fully prove that the employee is indeed incompetent for the position;
3. Conduct targeted job training or reasonable job adjustment for incompetent employees;
4. re-assessment after training or job transfer proves that the employee is still incompetent;
5. 30 days' written notice of termination, or payment of 1 month's salary in lieu of notice;
6. Before termination, the reasons should be notified in writing to the trade union and the opinions of the trade union should be heard.

(2) Common irregular operations

1. There is no written standard of competence, and the leader is subjectively judged to be "incompetent";
2. After being determined to be incompetent, he was directly dismissed, neither trained nor transferred;
3. The training is just going through the motions, the transfer is insulting and punitive, and there is no basis for re-assessment.

Real case: (2025) Jing 01 Min Zhong No. 14029 A certain degree company directly terminated the labor contract between the two parties on the grounds that the employee was "professional and performant, unable to meet the development needs of the business and team, and was not competent for work", and neither trained the employees nor transferred them. The court held that the company failed to perform the legal procedures for training or job transfer stipulated in the Labor Contract Law, and the termination was illegal, and it was ordered to pay 2N compensation.

Lu Heng's view: Termination of a labor contract on the grounds of "incompetence" is by no means a simple matter that can be unilaterally decided by an enterprise immediately. The law sets a set of interlocking statutory pre-procedures for this purpose: the employer must first provide evidence to prove that the employee does not meet the job requirements, and then must conduct targeted training or reasonable job adjustment for the employee.

3. Dismissal on the grounds that "the probationary period does not meet the employment conditions": pay equal attention to timeliness and standardization

Many managers have a misunderstanding: the probationary period is the "trial period", and they can be dismissed at any time if they feel it is not suitable. However, the reality is that the statutory requirements for dismissal during the probationary period are stricter than those for regular employees, and a considerable proportion of probationary dismissal disputes are ultimately lost.

(1) The core conditions for legal dismissal during the probationary period

1. There are written, clear and signed and confirmed employment conditions when employees join the company;
2. There are complete and objective assessment records during the probationary period, which fully proves that the employee does not meet the employment conditions;
3. The notice of termination must be served before the expiration of the probationary period, once the probationary period has expired, the ground will no longer apply.

(2) The two most fatal irregular operations

1. Employment conditions are not set at the time of entry, or the employment conditions are vague and cannot be quantified;
2. After the expiration of the probationary period, he was dismissed on the grounds of "not meeting the employment conditions".

Real case: (2023) Yue 03 Minte No. 2220 A company in Shenzhen agreed on a three-month probationary period with its employees, during which the company did not conduct any formal assessment of He, nor did it send He any written notice of failure to meet the probationary period. The day after the expiration of the probationary period, the company suddenly sent a "Notice of Termination of Labor Contract" to He, unilaterally terminating the labor contract on the grounds that "He did not meet the employment conditions and failed the assessment during the probationary period". The court clearly determined that the probationary period had expired, and the company could no longer terminate the labor contract on the grounds that "the probationary period did not meet the employment conditions", and ruled that the company illegally terminated it and paid 2N compensation.

Lu Heng's view: The legal effect of terminating a labor contract on the grounds that "the probationary period does not meet the employment conditions" has strict timeliness. According to Article 39 of the Labor Contract Law, the employer must make a decision and deliver the notice of termination to the employee before the expiration of the statutory probationary period to exercise the right of termination on this ground. Once the probationary period expires, the employee's status of regularization is determined, and the employer loses the right to unilaterally terminate the contract on the grounds that "the probationary period does not meet the employment conditions".

Finally, a core mantra for all HR

If you want to avoid losing the lawsuit, remember these 20 words: the system must take effect, the violation of discipline must be quantified, the process must be complete, and the evidence must be closed-loop.