China: PRC Employment Law Update (Chinese)

Last Updated: 13 April 2017
Article by Richard Bell

简介

2016年11月30日,中国最高人民法院发布了《第八次全国法院民事商事审判工作会议(民事部分)纪要》(以下简称《纪要》)。《纪要》于发布当日生效。

《纪要》为各级人民法院依法公正审理各类民事案件提供了有效指导,旨在妥善保障各类民事主体的合法权益,有效促进经济社会持续健康发展。

本期法律更新,我们将聚焦《纪要》中劳动法相关的两点内容——违反竞业禁止义务的赔偿以及用人单位单方解除劳动合同的相关规则。

《纪要》对于用人单位的重要意义

  • 违反竞业禁止义务的赔偿

在中国,用人单位通常会在劳动合同中约定竞业禁止条款,使得劳动者在同用人单位因任何原因解除劳动合同后,于特定期限内不得受雇于用人单位的竞争对手。在此类情况下,双方可以约定,如果劳动者违反竞业禁止协议,应当向用人单位支付损害赔偿。然而,在部分案件中,合同确定的损害赔偿同用人单位的实际损失并不相符:约定的损害赔偿可能会过低,不足以涵盖用人单位的实际损失(此时用人单位将遭受损失);更常见的是,约定的损害赔偿明显高于用人单位的实际损失(此时劳动者将处于不利地位)。

对此,《纪要》第28条规定,"用人单位和劳动者在竞业禁止协议中约定的违约金过分高于或者低于实际损失,当事人请求调整违约金数额的,人民法院可以参照《最高人民法院关于适用〈中华人民共和国合同法〉若干问题的解释(二)》第29条的规定予以处理。"

上述司法解释第29条赋予了法官一定的裁量权对约定的违约金进行调整,从而使违约金同用人单位的实际损失相符。中国最高人民法院发布的指导性案例中也明确了这一规则,即当事人约定的违约金超过实际损失百分之三十的,一般可以认定为 "过度高于造成的损失"而被调低。因此,若希望在劳动合同中加入竞业禁止条款,用人单位应当确保相关条款是对劳动者违反竞业禁止义务可能造成的损失(只要是可能的)的真实评估,而不是简单地约定一笔违约金作为劳动者违约的惩罚。

  • 解除劳动合同

根据中国劳动合同法,用人单位不得在缺乏合理原因的情况下单方解除劳动合同。只有在劳动者不能胜任工作岗位时,用人单位才可以单方解除劳动合同,但该单方解除权存在限制。首先,用人单位必须为劳动者提供培训,使得劳动者有机会提升工作能力从而胜任工作岗位;其次,用人单位必须提供证据证明,经过培训劳动者不能胜任相关工作岗位。若用人单位未能证明其履行了上述义务,则劳动者有权基于违法解除劳动合同向用人单位主张赔偿。

《纪要》第29条规定,用人单位在劳动合同期限内通过"末位淘汰"或"竞争上岗"等形式单方解除劳动合同,劳动者可以用人单位违法解除劳动合同为由,请求用人单位继续履行劳动合同或者支付违法解除赔偿金。

《纪要》第29条明确,用人单位违法解除劳动合同的,劳动者可以请求用人单位继续履行劳动合同或支付经济补偿(根据中国劳动合同法,用人单位违法解除劳动合同,应当依照经济补偿标准的二倍向劳动者支付赔偿金;经济补偿按劳动者在本单位工作的年限,每满一年支付一个月工资的标准向劳动者支付。)鉴于上述两种后果均对用人单位不利,以不能胜任工作岗位为由解雇劳动者时,用人单位应当确保其已经提供必要的培训且能够充分证明劳动者经培训仍不能胜任工作岗位,从而确保其解雇的合法性。

2017年4月《中国法律快讯》的完整链接和其他文章的链接如下:

PRC Employment Law Update (Chinese)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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