The Answers to Questions on the Application of Laws in the Trial of Labour Dispute Cases, issued in April 2017 by the Beijing Municipal Higher People’s Court and the Beijing Municipal Labour and Personnel Affairs Dispute Arbitration Commission, provide answers to numerous unclear issues in the current labour law regime.
In this column, in the previous issue, the author analyzed the above-mentioned answers from two aspects: (1) when an enterprise can unilaterally change the job position of an employee; and (2) how an enterprise can terminate an employment relationship on the grounds that a material change in the objective circumstances has occurred. In this issue, the author will continue to explore some of the key contents of the answers.
In what circumstances is an employee not required to be reinstated?
In labour dispute cases there is one important question: What circumstances do not support the continued performance of an employment contract? In employment termination cases, the issue that causes enterprises the greatest headache is not usually to pay double the severance pay, but rather a worker demanding continued performance of his or her employment contract. When enterprises carry out retrenchment, the pressure of this is particularly great. If an employee accuses his or her company of illegally terminating his or her employment contract and the final judgment requires continued performance of his or her employment, the retrenchment fails and the resulting precedent causes even more headaches for the enterprise.
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Author: Patrick Gu is a partner at DaHui Lawyers