by Maggie Kong, Shane Lou, Susan Shan, Kent Xu, Grace Yang, Anderson Zhang and John Zhou
During the recruitment process, the employer often requires the employee to provide basic information which directly relates to the employment contract such as age, degree, English level, work experience, health condition, etc., and employees shall truthfully provide the same, and a failure to do so entitles the employer to terminate unilaterally the employment contract without severance pay.
- The employee shall provide factual information. Article 3 and 8 of the Employment Contract Law states that the conclusion of employment contracts shall comply with the principle of good faith. An important aspect of the principle of good faith is that both parties to the employment contract have the right to know, namely having the right to know the opposite party and important information concerning the employment contract.
If the employee supplies false information or conceals the factual conditions which cause the enterprise to recruit him or her, which is contrary to the enterprise's true intent, pursuant to the regulation of Article 26 of the Employment Contract Law, this employment contract shall be invalid. Furthermore, in accordance with Article 39 of the Employment Contract Law, the enterprise can terminate the employment contract with the employee without severance pay.
- The information required by the employer shall be relevant to the preformation of the employment contract. In practice, the employer may require information which is not absolutely necessary. Examples include information relating to the employee's parents, children and spouse or the medical history of the employee. The said information does not relate to the performance of the employment contract and may relate to personal privacy, which may lead that some employees provide false information or conceal factual conditions to protect their personal privacy. If the employer terminates the employment contract with the employee due to this false information irrelevant to the performance of the employment contract, it will be hard to be upheld by the judicial authority.
Except for the principle of good faith, the employer shall abide by the principle of equality of rights and obligations in regard to the false information supplied by the employee. In accordance with the criteria, namely directly relating to the performance of the employment contact, the employer needs to decide if supplying false information violates the principle of good faith. Terminating the employment contract against the principle of equality of rights and obligations bears the risk of being denied.
Case Study: The Employee Provides False Information and the Employer Can Unilaterally Terminate the Employment Relationship
An import and export company intended to hire a manager for the sales department since August, 2010, requiring a male between 30 to 40 years old with five years' experience of management and at least bachelor's degree. On October 16th, 2010, after two rounds' interviews, Mr. Zang was hired, filled in the application form of on-board, signed and received the staff handbook and signed the engagement confirmation letter and its attachments.
Article 12.2 of the staff book (version 1.0) regulates that providing false personal information, materials or other relevant documents required by the company (forging sick leave certificate, invoice or falsifying overtime work) will be deemed as grievous fault and the relevant discipline will be terminating the employment immediately. In the application form of on-board, Mr. Zang made a statement: "the information I fill in and relevant certificates I provide are complete, accurate and updated. I further declare that I do not have any criminal record and I fully understand that if the said information I supply is false or leads the company making wrong judgment, the company has the right to terminate the employment contract with me." Mr. Zang signed on the statement.
After three months of on-boarding, the company found out that Mr. Zang merely obtained a degree of junior college other than the bachelor's degree filled in by Mr. Zang in the application form of on-board. As a result, the company terminated the employment contract with him. Mr. Zang was dissatisfied with the termination of his contract and applied labor arbitration. H required the company to revoke the decision of termination and continue to perform the employment contract. The labor dispute commission held a trial but did not uphold his pleadings.
In this case, Mr. Zang did not provide factual information concerning his personal conditions, which led the company to hire him contrary to the company's true intent. On the above basis, the company can terminate the employment contract with him in accordance with Article 26 and 39 of the Employment Contract Law without severance pay.
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