As common readers of this weblog ought to know, employers in China, (particularly overseas employers) face myriad, sophisticated and hypertechnical native employment legal guidelines. This typically implies that one small employer mistake can result in huge and costly issues. As a lot as we want all our employment legislation purchasers would first come to us requesting we audit their employment program to convey it into compliance, the reality is that about half the time they arrive to us solely after they’ve been hit with an enormous (and almost all the time costly) worker drawback.
The excellent news is that almost all who come to us to resolve their urgent worker drawback understand the good thing about having us work with them to stop future issues. These are the purchasers who understand that it is sensible to alter their oil each 3,000 miles as an alternative of getting to purchase a brand new engine each 40,000 miles. Some purchasers are satisfied (or ought to I say persuade themselves) that their worker drawback was only a one-off and that their “relationship” with their different workers means there shall be no such issues sooner or later. About all I can inform them is that my expertise and that of each single different China employment lawyer I do know says their future odds are usually not good.
Typically, the easiest way to take care of nearly each authorized drawback (in China and just about in all places else as effectively) is to do each what you may to resolve that “one” drawback and to look out and treatment the basis reason behind that drawback in order that the identical type of drawback doesn’t reoccur.
Contemplate this hypothetical based mostly on one of many two or three commonest China employment legislation points our China employment legal professionals see. Overseas firm employer needs to terminate an worker and approaches the worker to debate a severance package deal. The worker responds by saying, “You’ll be able to’t terminate me as a result of not solely do you not have any authorized foundation to take action, I’m on an open-term contract.” The employer then seeks to verify the worker’s contract however can not discover a signed copy of it. Now let’s suppose the employer then has a face-to-face assembly with the worker the place the worker says: “I like working right here so I’ll neglect about what you mentioned about my termination.” The employer replies, “Nice. We respect your cooperation.” after which goes on about its enterprise.
Good transfer by the employer? NO, NO, NO, a thousand occasions no. When our China employment legal professionals get a matter like this, the very first thing we do is attempt to make clear with the employer why it wished to terminate the worker within the first place. Was it as a result of there was not sufficient work? Was it as a result of the worker is incompetent? If there’s a legally permissible floor for a unilateral termination, the worker’s consent just isn’t required and the employer can (and oftentimes ought to) proceed with the termination. In some circumstances, particularly the place the employer is coping with an issue worker, it would make sense for the employer to provoke a unilateral termination as quickly as attainable and in doing so you’ll want to protect all proof supporting its claimed foundation for the termination for any labor arbitration or litigation sooner or later. Generally, if the employer doesn’t want to retain the worker, the employer ought to speak with the worker a couple of mutual termination as quickly as attainable, even when the worker is an open-term worker.
Even when the employer continues to make use of the (virtually terminated) worker, it ought to do what it could possibly to find out whether or not the worker was certainly on an open-term employment. Not having a written employment settlement doesn’t essentially imply the worker has change into an open-term worker. If the worker just isn’t an open-term worker, the employer ought to nonetheless determine whether or not it needs to make use of a fixed-term or an open-term settlement with the worker going ahead.
If there really isn’t any written employment contract between the events that precisely displays the worker’s particular scenario, the employer ought to search to enter right into a written employment contract with this worker as quickly as attainable. As soon as the problems regarding this worker have been resolved, the employer ought to then see what kinds of present employment contracts it has with all of its different workers. Even when the employer does have contracts with all of its different workers, that also won’t suffice if these contracts are usually not present. If there are any imminent employment contract renewals on account of an worker’s contract expiring quickly (i.e., inside 30 days) the employer should not delay coping with these as effectively. In different phrases, an employer should not lose sight of its different workers due to this one worker.
If the employer within the above hypothetical executes an applicable new employment contract with this one worker however does nothing extra we will count on it would have comparable employment issues with its different workers quickly sufficient. China workers speak with their fellow workers about this stuff (identical to just about in all places else on this planet) and this one worker will quickly be telling your different workers how she or he received a fantastic deal from you and the way they’ll and may push you for a similar deal as effectively. It’s really fairly frequent for one in all our China employment legal professionals to need to take care of a scenario the place one worker has complained about an employment contract drawback and even earlier than the employer has had time to signal our payment settlement, we are actually coping with three or 4 workers with the identical criticism
It’s almost all the time less expensive to take care of your employment points proactively and never wait till they arrive “from nowhere” within the type of a criticism. Consider that first worker criticism as your canary in your coal mine and use it to your benefit to nip impending/future worker issues within the bud with an employer audit.