The rescission of a labor contract refers to the legal act that one or both parties of the labor relationship cancel the labor relationship in advance due to some reason after the conclusion of the labor contract, but before the performance or full performance. The employing unit and the laborer may dissolve the labor contract if they reach a consensus through consultation. According to the relevant provisions of the Labor Law, the Labor Contract Law and the Regulations on the Implementation of the Labor Contract Law, the types of labor contract termination in addition to the termination agreed by the employer and the worker, also include the unilateral termination of the worker and the unilateral termination of the employer.

1. The worker unilaterally rescinds the labor contract

The unilateral rescission of the labor contract includes two kinds: immediate rescission and delayed rescission. Labor laws and regulations stipulate the circumstances in which a worker notifies the employing unit of the termination of a labor contract at any time: (1) during the probation period; (2) The employing unit forces the employer to work by means of violence, threat or unlawful restriction of personal freedom; (3) The employing unit fails to pay labor remuneration or provide working conditions as stipulated in the labor contract. Rescission at any time herein is "immediate rescission". If a worker terminates the labor contract under other circumstances, he shall notify the employer in writing 30 days in advance, and such termination by notice shall be deemed as "delayed termination".

2. The employing unit unilaterally terminates the labor contract

The employing unit may rescind the labor contract in the case of fault or no fault on the part of the laborer. However, according to the provisions of labor laws and regulations, if the laborer is not at fault, the employer shall notify the laborer in writing 30 days in advance of the termination of the labor contract, including: (1) where the laborer is ill or injured not due to work, and after the expiration of his medical treatment, he is unable to take up the original work or any other work arranged by the employer; (2) The worker is not competent for the job, and after training or adjustment of his post, he is still not competent for the job; (3) Significant changes have occurred to the objective circumstances on which the labor contract was concluded, resulting in the inability to perform the original labor contract, and no agreement can be reached on the modification of the labor contract through consultation between the parties. The employing unit may rescind the labor contract at any time if a laborer commits any of the following faults: (1) it is proved that he fails to meet the conditions for employment during the probation period; (2) seriously violating labor discipline or the rules and regulations of the employing unit; (3) serious dereliction of duty, malpractice for personal gain, causing serious damage to the interests of the employing unit; (4) being investigated for criminal responsibility according to law.

It should be noted that according to the provisions of labor laws and regulations, the employer may not invoke the above-mentioned provisions to terminate the labor contract in any of the following circumstances: (1) The worker suffers from occupational disease or work-related injury and is confirmed to have lost or partially lost the ability to work; (2) being ill or injured within the prescribed period of medical treatment; (3) female workers during pregnancy, perinatal period or breastfeeding period; (4) Other circumstances provided for by laws and administrative regulations. In addition, in practice, the employee often causes great troubles to the enterprise, and the two parties even have bad relations. In fact, the employee is no longer suitable to continue working in the enterprise, but it is difficult for the enterprise to invoke laws and regulations to terminate the labor contract with him. Many enterprises are often forced to use the "serious violation of labor discipline or the rules and regulations of the employer" clause to forcibly terminate, but in the dispute handling, judicial bodies often find that the enterprise can not prove the employee "serious violation" and the ruling is invalid, requiring the enterprise to compensate or restore labor relations. In view of this situation, it is recommended that the enterprise in the conclusion of the labor contract, as far as possible to clearly agree on what constitutes a "serious violation", but also in the subsequent "labor manual" and "internal system" in detail to specify the identification of "serious violation" criteria (it should be noted that these provisions must be known and recognized by employees through appropriate procedures), so as to avoid the future "can not be followed".

3. Payment of economic compensation

In accordance with the provisions of labor laws and regulations, when the employer and the laborer terminate the labor contract by consensus through consultation, when the employer notifies the laborer 30 days in advance of the termination of the labor contract, during the period of statutory reorganization or when the production and business conditions are seriously deteriorated and the employer makes staff reduction, the employer shall make corresponding economic compensation to the laborer in accordance with the provisions of the State. Here is a reminder: if the enterprise is determined to terminate the labor contract with a worker, and is worried that the worker may have other "moral hazards" (such as intentionally destroying corporate data, etc.) after the notice of termination of the contract is delivered, it can bypass the "30-day notice" by paying "payment payment" (that is, pay an extra month's salary).

【 Case Study 】

In May 2008, Lu Xiang was recruited by Shanxi Shuozhou Fuhua Electric Metallurgy Co., LTD., working as an electrician. In June 2006, Shanxi Shuozhou Fuhua Electric Metallurgical Co., Ltd. was changed to Shanxi Huicheng Electric Metallurgical Co., LTD. In December 2008, Shanxi Huicheng Electric Metallurgical Co., Ltd. and other natural persons jointly established Shuozhou Tiancheng Electric Metallurgical Co., Ltd. at the original site of its ferroalloy branch plant. On January 3, 2016, Shuozhou Tiancheng Electric Metallurgical Co., Ltd. terminated labor relations with Lv Xiang for violating company discipline. On March 2, 2016, Shuozhou Shuocheng District Labor Dispute Arbitration Committee ruled that Shuozhou Tiancheng Electric Metallurgy Co., Ltd. paid the economic compensation for the termination of labor relations for Lu Xiang, and paid the pension insurance premium and unemployment insurance premium for Lu Xiang from May 2008 to January 3, 2016. The case continued the litigation process, after the first and second trials before the dust was settled.

The Court of second instance held that the appellant Shuozhou Tiancheng Electric Metallurgical Co., LTD. 's appeal that appellant Lu Xiang disobeyed management and opposed the company, was dismissed because of his serious violation of labor discipline, and that he should not be paid economic compensation in addition to labor relations could not be established. Whereas, the labor arbitration institution has found that the appellant Shuozhou Tiancheng Electric Metallurgical Co., Ltd. did not formulate labor rules and regulations in accordance with Article 4 of the Labor Contract Law when formulating labor rules and regulations, that the termination of the labor relationship on the grounds that the worker violated the rules and regulations of the unit is not in accordance with the law, and that the Appellant Shuozhou Tiancheng Electric Metallurgical Co., Ltd. does not have sufficient evidence to support its claim, Therefore, the reason for the appeal is insufficient evidence and groundless in law, and the court of second instance will not support it.

In the process of labor employment, if an enterprise tries to terminate the labor relationship with the worker, the common reason for its application is often the serious violation of labor discipline by the worker. Such cause of dismissal is indeed a legal cause, but there are certain risks in the application process, that is, if the enterprise cannot prove that the employee has a "serious violation", the termination of the labor contract by the enterprise applying such cause will be considered as illegal termination, and the enterprise shall bear the corresponding economic compensation. Therefore, if the enterprise uses the cause as the basis for rescinding the labor contract, it needs to do a good job of evidence collection in advance, and even as the author suggests in the previous article, the identification standard of "serious violation" is preset in the usual labor contracts, labor manuals, and labor system documents, so as to clearly understand and settle disputes when providing evidence in the future.