In the practice of enterprise management, some operators have the misunderstanding of "I have to lose money if I open my own company". This concept often becomes the root cause of high legal costs for enterprises. The termination of the labor contract has strict legal requirements and procedural requirements, and any arbitrary operation that ignores the statutory rules may be recognized as illegal termination and face legal liability for paying compensation. Based on real judicial precedents, this paper sorts out the seven most common types of illegal operations when enterprises terminate labor relations, in order to help enterprise managers identify risks and standardize employment.

1. Verbal dismissal: Lack of formality leads to the invalidation of the dismissal

Real case: The owner of a technology company in Shenzhen posted a sentence on WeChat saying "You don't have to go to work tomorrow" because an employee confronted him, neither issued a written termination notice nor went through the resignation procedures. Employees clocked in to work at the company as usual, but the company treated them as absenteeism and stopped paying wages. In the end, the court found that the company had no legal basis for verbally terminating the labor relationship, which was an illegal termination, and ordered to pay the employee 2N compensation for a total of 14 months' wages.

Legal red line: Article 50 of the Labor Contract Law clearly stipulates that the employer shall issue a certificate of termination or termination of the labor contract when the labor contract is terminated or terminated.

Lu Heng's view: The employer's unilateral termination of the labor contract must be made through legal forms, based on legal reasons and in accordance with legal procedures. Only verbally expressing to the worker that "no need to come to work again" does not constitute a valid termination in law. In this case, if the employee continues to provide labor, the labor relationship between the two parties still exists, and the employer still has the legal obligation to pay the labor remuneration in full. If the employer then deals with it on the grounds of absenteeism or refuses to pay wages, it will constitute illegal termination and must bear the legal responsibility for paying compensation.

2. Termination of probationary period: lack of employment conditions and assessment basis

Real case: A technology company in Wuhan signed a three-year labor contract with employee Yang, agreeing on a three-month probationary period. One day before the expiration of the probationary period, the company issued a notice of termination of the labor contract to Yang on the grounds of "unable to meet attendance requirements, failing to communicate effectively with customers, and being incompetent for the position". During the arbitration and trial, the company was unable to submit written employment conditions confirmed by both parties at the time of employment, nor did it have a publicized attendance system, probationary assessment standards and assessment records, and only verbally stated that the employee's ability was insufficient. In the end, the court found that the company failed to provide evidence to prove that the employee's probationary period did not meet the employment conditions, and the termination was illegal, and it was ordered to pay 2N compensation.

Legal red line: Article 39 of the Labor Contract Law stipulates that the employer must meet two conditions at the same time to terminate the labor contract during the probationary period: (1) inform the employee in writing of the employment conditions in advance; (2) Evidence proving that the worker does not meet the employment conditions is indispensable.

Lu Heng's view: Subjective evaluation alone believes that the employee is "unsuitable" does not constitute a statutory reason for dismissal. If the employer cannot provide evidence to prove the above elements, its termination will be deemed to be illegal termination and must bear the legal responsibility for paying compensation.

3. Last elimination: There is no legal basis for direct dismissal based on ranking

Real case: Supreme People's Court Guiding Case No. 18 A company dismissed the employee who ranked last in the performance appraisal on the grounds of the "last elimination system", claiming that the employee was "incompetent for the job". The court clearly determined that the last elimination does not mean that the employee is incompetent, even if the full assessment always ranks last, it does not mean that the employee is not competent for the position, and the company terminates the labor contract on this ground, which is illegal termination and must pay 2N compensation.

Lu Heng's view: "Last elimination" is not a statutory reason for termination of the labor contract. The employer's direct termination of the labor contract on the grounds of being eliminated at the bottom essentially circumvents the statutory requirement that "incompetent work" can only be terminated after training or job transfer procedures.

4. Dismissal for serious violations of discipline: rules and regulations have not been subject to legal procedures

Real case: A company in Nanjing dismissed an employee on the grounds that "the employee was late three times a month, which was a serious violation of rules and regulations". However, during the trial, it was found that the company's "Employee Handbook" was only formulated by the management meeting, and did not go through the democratic process of discussion by the employee congress/all employees, nor was it publicized to employees and asked employees to sign and confirm, and employees said in court that they had never seen this manual. In the end, the court found the rules and regulations invalid and the company's termination was illegal.

Legal red line: Article 4 of the Labor Contract Law stipulates that rules and regulations must be formulated through democratic procedures and publicized or informed to workers, otherwise they cannot be used as the basis for managing and terminating labor contracts.

Lu Heng's view: The so-called "internal regulations" that have not been disclosed to workers without legal procedures are not legally binding. Using the content of the system that the employee does not know or has not confirmed as the basis for punishment or termination of the contract lacks legitimacy and legitimacy.

5. Employees are kicked out and their wages are deducted after resigning: infringing on the rights of workers

Real case: Employee A of a company in Guangdong sent a resignation letter through his work email 30 days in advance due to personal reasons, clearly informing him that the last working day would be 30 days later. On the 8th day after receiving the resignation letter, the company directly issued a resignation certificate, informing the employee that he did not need to come to work again, and withheld the remaining 20 days' wages. The court held that the employee's 30 days' notice to terminate the labor contract was a legal right, not an application that required the approval of the employer, and the company had no right to deprive the employee of his labor rights in advance, and ordered the company to pay the withheld wages in full.

Lu Heng's view: The employee's 30 days' notice to terminate the labor contract is his unilateral right to terminate in accordance with the law, and the 30-day notice period is the statutory period for the employee to perform the work handover obligation. After receiving the notice, the employer has no right to unilaterally shorten the period or forcibly require the employee to leave the job early. If the employer stops the worker's work and refuses to pay the remaining wages during this period, it essentially constitutes an infringement of the worker's labor rights.

6. Dismissal of employees during the special protection period: legal liability far exceeds expectations

Real case: A company in Shaanxi unilaterally issued a notice of termination on the grounds of "incompetent work and substandard performance" without consensus, knowing that the employee Deng was pregnant, and illegally terminated the labor contract with Deng. Even though the company submitted a resignation application signed by Deng, the court found that the company illegally terminated the labor relationship during Deng's leave and waiting for childbirth. In the end, the court found that the female employee was legally prohibited from terminating the labor contract without fault during pregnancy, and the company's termination was completely illegal, and in addition to the judgment to pay 2N compensation, the company was also ordered to compensate Deng for a total of 227,000 yuan in wages, benefits and childbirth-related losses during pregnancy, childbirth and lactation.

Legal red line: Article 42 of the Labor Contract Law stipulates that if a female employee is pregnant, giving birth, or breastfeeding, or if the employee is ill or injured due to non-work-related injuries within the prescribed medical period, the employer shall not terminate the labor contract in accordance with the provisions of Articles 40 and 41 of this Law.

Lu Heng's view: If the employer unilaterally terminates these types of workers with special protection, its behavior will be deemed to be illegal termination and must bear the legal responsibility for paying compensation (2N). In judicial practice, the scope of compensation in such cases is not limited to statutory compensation, but may also include all wages and benefits of the worker during the "three phases" or medical treatment period, and the total amount of compensation often far exceeds the compensation standard of ordinary labor dispute cases.

7. Seizure of resignation certificates and files: compensation for actual losses

Real case: After a cultural media company in Beijing terminated the labor contract with employee Zhou, it refused to issue a resignation certificate to Zhou due to a dispute between the two parties over the handover of work. Zhou repeatedly urged to no avail, resulting in his inability to join the new company, and the offer issued by the new company clearly stated a monthly salary of 22,000 yuan, but the employment was canceled because he could not provide a resignation certificate. In the end, the court ruled that the company failed to issue a resignation certificate in accordance with the law, and there was a direct causal relationship with the employee's inability to join the company, and should compensate the employee for a total of 154,000 yuan in wage losses.

Legal red line: Article 89 of the Labor Contract Law stipulates that if an employer violates the provisions of this Law by failing to issue a written certificate of termination or termination of the labor contract to the employee, causing damage to the employee, it shall be liable for compensation.

Lu Heng's view: Employers use the seizure of seizure certificates as a means of resolving disputes or pressure, which not only lacks legal basis, but may also face significant legal risks, and must compensate employees for actual losses such as wage losses suffered as a result.

The last 3 basic pit avoidance advice

1. Consultation first: Dismissal involves complex legal elements and procedural requirements, so consult a professional HR or labor lawyer before making a decision to avoid acting based on subjective will;
2. Written traces: All employment management behaviors, including assessment, disciplinary handling, communication and negotiation, etc., should be written records and confirmed by employees. Verbal promises are difficult to use as valid evidence in the arbitral tribunal;
3. Negotiation first: Consensus termination is the lowest legal risk termination method. Reaching an agreement by paying statutory economic compensation is far better than paying double compensation after illegal termination and spending a lot of time and energy dealing with arbitration litigation.