| The restriction of employer’s dismissal right has always been a key issue in the field of labor law.In the case of public health emergencies such as COVID-19,the stability of labor relations has been greatly impacted.The discussion on the restriction of dismissal right is particularly necessary.Under the background of COVID-19,the system of dismissal restriction in China is mainly composed of the general provisions on the limitation of the right to dismissal in the legislation and the special regulations on the termination of the right of dismissal issued during the epidemic period,that is,the employing units can only be regarded as legally exercising the right of dismissal if they meet certain dismissal causes and dismissal procedures.At the same time,it is forbidden to dismiss the special population in the epidemic situation under certain conditions.However,in the face of some special situations in the epidemic situation,there are divergent views on whether some situations belong to "serious violation of the rules and regulations of the employer" and "significant changes in the objective situation" in the application of the general provisions,as well as the employer’s improper performance of the economic layoff procedures;However,there is a dilemma of the lack of a middle zone between dismissal and dismissal protection in the setting of special restrictions.There are three main reasons for the above problems:first,there is a conflict between the rights of employers and workers,which is manifested in the conflict between the right of self-management of employers and the right of employment of workers,and the game between the right of survival of employers and workers under the background of epidemic situation;Secondly,the current legal provisions are not perfect,such as the unclear definition of the reasons for dismissal,the general provisions,and the formality of economic layoff procedures,which increase the difficulty of law application in practice;Thirdly,there are differences in the concept of judicial adjudication,which further leads to differences in the application.Based on this,in view of the above problems,we should,on the one hand,adhere to the principle of proportionality,clarify the judicial discretion standard of dismissal,that is,whether some special circumstances in the epidemic can be identified as "serious violation of the rules and regulations of the employer" and "significant changes in the objective situation",So that the cause of dismissal can really play a reasonable role in limiting the right of dismissal;On the other hand,we should improve the system of dismissal right restriction under the background of epidemic situation through legislation.Firstly,we should further improve the "labor consultation" procedure in economic layoffs.Secondly,we should consider introducing the spear and shield between dismissal and dismissal protection in the special restrictions on termination of labor contract.Finally,in the context of normalization of epidemic situation,In order to further improve the legal system of labor protection,we should formulate special legislation for labor protection under public health emergencies,promote the connection between special restrictions and general restrictions. |
