How To Regulate The Behavior Of Labor Dismissal?

< p > as we all know, labor dispatch is a kind of labor force employment and separation mechanism.

As far as the existing legal provisions are concerned, there are mainly 3 ways to standardize the work withdrawal.

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< p > > the second clause of the sixty-fifth clause of the labor contract law stipulates that if the dispatched worker has thirty-ninth articles in this Law and fortieth items in the first and second stipulates, the employing unit may return the laborer to the labor dispatch unit.

In accordance with the relevant provisions of this law, the labor dispatching unit may terminate the labor contract with the workers.

Accordingly, statutory withdrawal is divided into immediate return and restricted return.

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< p > immediate withdrawal refers to the fact that the dispatched employee fails to meet the requirements in the presence of fault or negligence or during the probation period, and the employer can immediately send the dispatched employee back to the sending company without payment of the economic compensation.

According to the thirty-ninth provision of the law, the following 6 acts of dispatched employees will lead to the immediate withdrawal of work: (1) during the probation period, it is proved that they are not in conformity with the employment conditions of the employing units; (two) serious violations of the rules and regulations of the employing units; (three) serious dereliction of duty, malpractice and serious damage to the employing units; (four) the dispatch of employees at the same time establishing labor relations with other employers, seriously affecting the completion of the work tasks of the employing units, or refusing to correct them by employing units; (five) using fraudulent, coercion means or taking advantage of the danger, using the workers to use the dispatched staff in violation of the true meaning; (six) being investigated for criminal responsibility according to law. According to the labor contract

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< p > restrictive labor withdrawal means that the dispatched employees will not be able to meet the employment needs of the workers due to their physical and technical reasons. After the employer has fulfilled their statutory obligations, the dispatched employees will be sent back to the sending company for a refund.

Restrictive return includes unsuccessful retirement and medical expiry.

According to the fortieth provision of the labor contract law, the dispatched employee is ill or not injured by work, and can not engage in the original work after the prescribed medical treatment expires, nor can he engage in any work arranged separately by the employing unit. Or the dispatched employee is not competent for the job. After training or adjustment of his post, he is still not competent for the work of the employing unit, and the employing unit can exercise the right to withdraw the work.

Because the employees who have been restricted to quit work have no fault or negligent act, the employing party must fulfill 3 obligations when they return to work: the first is training or adjusting posts for the dispatched employees.

When a dispatched employee fails to engage in a dispatch position due to physical or mental reasons, he or she can only be trained or pferred to the post, and can not be engaged or competent afterwards. Two, it is necessary to inform the dispatched employee 30 days in advance of the fact that the employee has been refunded.

If you can not inform 30 days ahead of time, you should pay 1 months salary to the dispatched employees as the compensation for the generation. Three, you should pay the economic compensation according to the working hours of the dispatched employees in the employment unit. You can pay 1 months' salary for 1 years in each job, and pay half a month's salary in less than 6 months. You can pay 1 months' salary in less than 1 months for 6 months.

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< p > due to the financial crisis, the employing units can not continue to use the dispatched staff, and the statutory way of returning workers is basically unusable.

Therefore, the key to the implementation of the withdrawal behavior depends on how the labor dispatch contract between the employer and the dispatched company is agreed.

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< p > labor dispatching contract is a kind of civil contract. Under the principle of equality, voluntariness and consensus, the employing party and the dispatched party may agree to return the dispatched employees in the dispatch agreement.

For example, if the employing unit is undergoing reorganization in accordance with the provisions of the enterprise bankruptcy law, there will be serious difficulties in production and operation. It is impossible to continue to use the dispatched personnel. Because of the pfer of production, major technological innovation or the adjustment of the way of operation, it is necessary to reduce personnel, or to suspend production or suspend business or to cancel or merge the departments.

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< p > but when setting up the withdrawal clause or exercising the right to withdraw the work, we should pay attention to the following matters: first, the content of the withdrawal must be lawful.

For example, in the dispatch agreement, it can not be stipulated that "the dispatched employee has a sick leave for more than 30 days, and the employer can return the work", nor can it stipulate that "the dispatched employee is not competent for the work, and the worker can return the work", because the above agreements are contrary to the mandatory provisions of the statutory withdrawal from work and the expiry of the medical treatment period.

In addition, the exercise of the right to recall should be based on the clear and accurate contract.

Unlike the reduction of formal employees in the unit, it is not possible for the worker to return the dispatched personnel to make use of the fortieth clause (three) of the labor contract law about the lifting of the objective situation and the forty-first provision on "economic layoffs".

It is also important to emphasize that the legitimate rights of dispatched employees can not be violated by agreement.

For example, we can not use contract to quit work to avoid laborers' right to enjoy economic compensation or the right to perform labor contracts.

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< p > if the employer does not have the conditions of statutory withdrawal or agreed to withdraw the work conditions, he may also make a return to work through the consultation with the dispatching company after he has obtained the approval from the dispatched employee.

In addition, when the dispatch agreement expires, the employer can also return the dispatched staff.

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< p > it is worth noticing that after the employees return the employees to the dispatched company, the dispatched company can relieve the dispatched employee's labor contract.

If it is a statutory withdrawal, the dispatch company may dissolve the labor contract of the dispatched employee.

If it is agreed to quit the work, the sending company shall not directly terminate the labor contract, and shall create the opportunity to continue sending the employee to other employment units; if it is unable to dispatch, the minimum wage shall be guaranteed during the labor contract; if the employee refuses to work for other employment units or does not receive the minimum wage during the period of suspension, the dispatched company may terminate the labor contract.

If it is a negotiation to quit the work, the employee's opinion has been sought, so the existence or dissolution of the labor contract can be decided according to the outcome of the consultation.

As for the expiry of the contract, the time limit for the labor contract and the dispatch contract is the same. Therefore, whether or not to terminate the labor contract depends on the common desire of the sending company and the staff.

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