Enterprises Do Not Have The Right To Impose Penalties On Employees Who Violate Discipline.

For employees violating discipline, enterprises can formulate rules and regulations according to law and set up corresponding treatment measures.

In this regard, the thirty-ninth article of the labor contract law clearly stipulates that employees can seriously break the rules and regulations of enterprises, and enterprises can terminate their labor contracts.

However, recently, journalists have encountered many cases of labor disputes arising from their violation of discipline. They are dissatisfied with the fines, or refuse to accept the posts, adjust their posts or pay their salaries, or assume that the enterprises are not allowed to make qualitative decisions on their behavior, or even make mistakes in their diction.

Is this really the case? Zhang Lide, a lawyer at Hongjia law firm in Beijing, said that employees' queries were legally based.

Although enterprises can rescind labor contracts in accordance with the law, there are various types of disciplinary actions committed by employees, and there are different plots or degrees in similar disciplines.

Therefore, the disciplinary actions committed by an enterprise to punish employees should be in line with their violation of discipline or degree of discipline.

Zhang said that the company could impose a fine on its employees. It started with the regulations on rewards and penalties for employees of Enterprises promulgated by the State Council in April 10, 1982. The regulations indicate that enterprises owned by the whole people and collective owned enterprises in cities and towns can be given administrative sanction or economic punishment for violating discipline workers.

Among them, administrative sanctions include warning, recording, marking, demotion, dismissal, detention, probation, and economic punishment.

In addition, the employees can be removed from the job for continuous absenteeism.

Although the Ordinance applies to enterprises owned by the whole people and collectively owned enterprises in cities and towns, other types of enterprises, such as private enterprises, are also applicable.

Until the abolition of the Ordinance in January 15, 2008, the Ordinance became a magic weapon for many enterprises to punish disciplinary staff.

Zhang said that after the abolition of the Ordinance, enterprises could remove labor contracts except for employees who were severely violating discipline, and there were various measures to deal with the general violation of discipline or serious breach of discipline but did not reach the degree of rescission of the labor contract. Besides continuing to use fines, expulsion and removal, there were still waiting for posts, salary cuts and automatic resignation.

Are these kinds of complicated disciplinary measures legal?

The twenty-ninth provision of the labor contract law stipulates that after signing a labor contract with an employee, the enterprise shall fulfill its obligations in accordance with the contract in accordance with the law.

The pfer of labor or salary reduction is a change of labor contract, enterprises must be carried out according to law.

Under statutory circumstances, if the employee is unable to work or the medical period is expired, he can not engage in the original work. According to the law, the enterprise can adjust the position of the employee unilaterally.

Adjusting the posts and reducing salaries is one of the management measures for the employment of enterprises. Laws and regulations have clearly defined their legal nature and application premise, and enterprises must proceed in accordance with the law.

Zhang said that adjusting posts and reducing wages can not be taken as a measure to deal with disciplinary staff.

"Since the pfer of Posts and the reduction of wages are the changing scope of the labor contract, there is no legal basis for enterprises to adjust posts or reduce salaries as a measure to deal with disciplinary staff."

Zhang believes that some enterprises have the illusion that they are affected by the administrative sanctions imposed by enterprises on the employees' disciplinary actions such as demotion and dismissal. However, the Ordinance has become a historical fact and can no longer be used as a legal basis for dealing with employees.

Waiting for a post is a product of a special historical period. It originated from the regulations of the State Council on the resettlement of surplus employees in the state owned enterprises in the early 90s of last century.

In the past two years, in the coal, steel and other industries to implement the production capacity policy implementation process, some parts of the enterprises are still relocating some employees through post placement measures.

On the implementation of the original Ministry of labor

The eighth provision of the notice on certain issues of the system stipulates that the employer should sign a labor contract with the surplus personnel of the unit, and the relevant contents of the labor contract should be changed if it is treated or released, and a special agreement is negotiated on the relevant contents.

Lawyer Zhang said that in connection with the relevant legal documents related to the unemployment system, it is easy to see that the post is aimed at the post itself, and its essence is also the changing scope of the labor contract.

Therefore, waiting for post is not a measure or means for enterprises to discipline employees.

If the rules and regulations of the enterprise stipulate that employees who are unlawful can be laid on the job, it is likely to cause adverse consequences for the abuse of employment management rights.

The dismissal or delisting system is administrative or administrative, which in essence can lead to the termination of the labor contract.

Zhang said that because of the abolition of the regulations on rewards and penalties for employees of enterprises, enterprises have no right to administrative sanctions.

Therefore, it is impossible to dismiss and remove employees who are seriously violating discipline.

In case of serious violation of discipline by employees, according to the existing laws and regulations, enterprises can rescind labor contracts in accordance with the provisions of the labor law and the labor contract law.

The rules and regulations of many enterprises require that employees leave without saying goodbye or fail to work in a certain period of time.

Zhang said that the automatic turnover is a fact, which is not the way to terminate the labor contract. Therefore, if the enterprise considers itself to be an automatic resignation, it is a misunderstanding.

For the processing of employees' automatic turnover, enterprises need to notify employees in writing according to the thirty-ninth provisions of the labor contract law to terminate the labor contract.

In order to avoid the risk of management that may be caused by the processing of automatic turnover, Zhang believes that the specific performance of the automatic turnover should be clearly defined as absenteeism in the rules and regulations of the enterprise, and the staff absenteeism must be over a certain number of days, and the labor contract is relieved according to the serious violation and no economic compensation.

However, before making and delivering the decision to remove the labor contract, the enterprise should notify the employee in writing to return to the post in a written time, otherwise it should be dealt with according to the rules and regulations.

At the same time, we should pay attention to collecting evidence to identify employees' absenteeism.

The notice of termination of the labor contract will be delivered to the employee in order to terminate the labor relationship between the two parties.

Otherwise, it will lead to the termination of labor relations and leave a big trouble for enterprises.

Zhang said that there are two views.

First, there is no law prohibiting it.

The view is that although the regulations on rewards and penalties for enterprise employees have been abolished, labor laws and labor contract law and other laws and regulations do not prohibit enterprises from fines and fines as a necessary measure for enterprises to implement employment management.

Two, we oppose corporate fines.

It is considered that "no law prohibiting it can be applied" to private law, while labor law is a social law and does not apply to the principle of private law.

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After the abolition, the authorization basis of the enterprise's fines is completely absent. The existing laws and regulations do not empower the enterprises to impose fines on their employees.

Correspondingly, there are two kinds of positive and negative cases in practice.

Then, can the penalty power be set up in the enterprise rules and regulations? Zhang believes that it should be prudent in combination with the local regulations and the way of referee's thinking. It is not appropriate to set the penalty measures under the premise that the local regulations or the way of thinking are not clear.

Because fine is one of effective management measures, but this practice can easily lead to labor disputes.

Even though some enterprises have established rules and regulations for fines for employees through democratic procedures, they will also be invalid because of violation of the thirty-eighth provision of the labor contract law.

"Enterprises without penalty power does not mean that employees can not adopt economic management measures."

Zhang said that enterprises can take other measures to manage their employees.

For example, linking the violation of discipline to the assessment factors and the interests of employees, determining the floating wages of employees, setting up the full attendance award and supplemented by warning and disciplinary progressively handling system, so as to control employees' attendance and discipline violations.

In addition, it can also restrict employees' violation of discipline by not giving or delayed salary increase and promotion.

As for the problem of music donations, Zhang said that many enterprises set up a donation box to allow employees who arrive late or leave early to pay 10 yuan or 20 yuan in cash according to the number of times they violate the law, claiming that this money is used for public welfare purposes or celebrating birthday for their employees. In essence, the donation is still a fine and not a voluntary donation, which is illegal.

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"Is a management measure applicable to the personnel relationship or employment contract of a staff member or a social organization, and the enterprise is not the qualified subject of the term" dismissal ".

Therefore, Zhang believes that in setting rules and regulations for handling serious violation of discipline and applying the measures, enterprises must use standard terminology, that is, "dissolution of labor contracts".

Because of the different discipline and the degree of violation of discipline, business rules often set corresponding measures.

Zhang said that the so-called progressive violation of discipline, that is, according to the number of employees being treated for violation of discipline and so on, and upgraded to a higher level of treatment measures.

Generally speaking, for similar violations, the number or condition of promotion may be less.

For non similar violations, there may be a slight increase in the number or condition of promotion.

For example, for example, if the former is given 3 warning treatment within a year due to absenteeism, late or early retirement, the enterprise may terminate the labor contract; the latter: the employee may be given 4 warning treatment within one year for different disciplinary cases, and the enterprise may terminate the labor contract.

To sum up, when setting up disciplinary measures and applying disciplinary measures, enterprises need to refine the specific violation of their employees, rather than adopt a general way of expression. The most typical example is: employees slack off, enterprises can rescind labor contracts, but there are no specific provisions on what situations are negative.

In relation to violation of discipline and disciplinary measures, enterprises should not make multiple choice questions by themselves.

In addition, when formulating rules and regulations dealing with disciplinary measures, enterprises should abide by the legal requirements of democratic procedures, legitimate contents and publicity to employees.

For violating discipline staff must deal with promptly, at the same time, we should pay attention to collecting and fixing relevant evidence.

In practice, it is generally difficult for the enterprises to implement the electronic attendance record to approve the attendance records of employees and adjudication agencies to prove their attendance records, such as absenteeism and annual leave.

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