Answer: You should first look carefully at the factual reasons and legal or institutional basis for the employer’s dismissal.
If the employer dismisses you on the grounds of “gross negligence and corruption causing major losses to employer” under Article 39 of the Employment Contract Law, it is necessary to see whether you have gross negligence or corruption while comparing your job description and have caused heavy losses to the employer. If that is the case, the termination by the employer is legal.
If the employer is based on your serious violation of the company rules on gross negligence or corruption, the first thing to see is whether the company rules are valid (see Is it legally permissible for my employer to discipline me?). Then you need to check how the rule defines gross negligence or corruption to consider whether you have constituted gross negligence or corruption when comparing your job description, and finally examine whether the employer has notified the trade union before dismissing you (see “How should my company handle the procedure of notifying trade union when terminating an employee?”). The employer¡¯ termination should be lawful if the foregoing conditions are met.
In the judicial practice, there are very few cases of lawful dismissal by employees on the grounds of “gross negligence and corruption causing major losses to employer”, and the relevant cases are those in which employers claimed employees having committed gross negligence or corruption causing major losses to the employer, but failed to provide evidence to prove, rendering the employees’ impugned acts were not established.
This legal provision is basically in a state of sleep. On the one hand, employers generally stipulate gross negligence and corruption as serious violations of labor discipline in company rules so as to avoid the high threshold of “causing heavy losses”; On the other hand, “corruption” itself is a serious act of dishonesty and a serious violation of professional ethics. According to the current decisions of courts nationwide, a serious violation of professional ethics is likely to be enough to constitute a legitimate reason for dismissal (even without the provisions of company rules). This also leads to the hollowing out of the statutory provision.
This article is a part of our new book“Employment Law in China: A Practical Guide. A book about “What should I do” with case laws.”Stay tuned, and the book will soon be published as an electronic books!
Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
Email: wangdong@royalaw.com