Research On The Recognition Of "Serious Violation Of Rules And Regulations Of Employer"

Article 39(2)of the Labor Contract Law of P.R.C stipulates that the employer may terminate the labor contract if the employee seriously violates the rules and regulations of the employer.There are many differences on the application of this article in judicial practice.It is difficult to reach a unified standard among different courts or even within one court,which often leads to the phenomenon of different judgments in similar cases.In order to ensure the consistency of the judgment in the trial of specific cases and realize the fairness of the trial,it is necessary to form a unified and stable identification mode for serious violations of the rules and regulations of the employer.There are two difficulties in the application of the clause,one is the review of rules and regulations,the other is the judgment of the severity of "serious violation".In the process of reviewing the rules and regulations,the court should first examine whether the formulation procedure of the rules and regulations is in line with the legal procedure,that is,whether the formulation and modification of the rules and regulations are discussed by the workers’ Congress or all the workers in accordance with the law,and then examine the publicity and notification procedure of the rules and regulations.In Labor Contract Law of P.R.C,it is stipulated that when the internal rules and regulations directly related to the vital interests of the employees,the employer has the obligation to publicize and inform,which is a necessary effective element for the formulation and modification of rules and regulations,and is also the focus of the review that the court should pay attention to in the process of trial.Thirdly,the court should review whether the rules and regulations infringe on the legitimate rights and interests of workers,and because of the wide range of rules and regulations,it should also review whether the review rules and regulations have beyond the scope of authority.In the meantime,in the process of reviewing the legitimacy of rules and regulations,we also need to pay attention to whether the content is in line with the characteristics of the industry and whether it matches the position of workers,that is,the rationality of rules and regulations.As for the judgment of severity,the author thinks that we should adopt the comprehensive measurement mode which is mainly based on the key measurement factors involved in the case and takes into account the combination of various measurement factors.It can neither be generalized,nor need to mechanically analyze all the measurement factors one by one in the trial process.To sum up,the rules and regulations of the employers are an important means for enterprises to carry out production and operation management and maintain the order.In the process of identifying serious violations of the rules and regulations of the employers,the court should not only ensure the effective protection of workers’ right to employment,but also pay attention to not interfering excessively in the exercise of the management right of the employers and balance the relationship between the right to employment and the management right so as to ensure the clause can be reasonably and effectively applied to practice.