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Wrongful dismissal or unfair dismissal in China employment law - A explanation by China employment lawyer

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Definition: Wrongful termination happens when an employee is discharged from employment for illegal reasons or if company policy is violated when the employee is fired.

In many cases, unless there is a contract or bargaining agreement, employees are considered covered under employment at will, which means your employer doesn't need a reason to fire you. However an employee can be wrongfully terminated if discrimination is involved in the termination, if public policy is violated, or if company policy states guidelines for termination.

 

Other reasons that could be construed as wrongful termination include retaliation i.e. being fired for being a whistle blower or complaining, or for not being willing to commit an illegal act when asked to by an employer.

Discrimatory reasons that can be considered wrongful termination include firing an employee because of race, nationality, religion, gender, or age.

Wrongful Termination

If you believe your termination was wrongful or you have not been treated according to the law or company policy, you can get help. The US Department of Labor, for example, has information on each law that regulates employment and advice on where and how to file a claim.

Your state labor department may also be able to assist, depending on state law and the circumstances.

In addition, local bar associations often have a referral service and may even have a hot line you can call to find an employment lawyer. Keep in mind that you will need to pay for an attorney's services.

Termination and Unemployment

When you are terminated you may not be eligible for unemployment compensation. If you are not sure whether you're eligible for unemployment, check with your state unemployment office to determine your eligibility for unemployment compensation. If your claim is denied you will be able to appeal and explain the circumstances of your termination.

Avoid wrongful termination claims to uphold your reputation as an employer of choice, maintain trust and cohesion with your remaining employees following a termination, and avoid nuisance and other unwarranted lawsuits. You maintain safety from losing wrongful termination lawsuits by treating employees legally and fairly when you end their employment for whatever reason, whether financially-motivated layoffs, performance problems, or more.

Former Employees Charging Wrongful Termination Often Seek a Scapegoat

Generally, an employee who is fired is angry, unhappy, and looking for someone to blame when his or her employment ends. The employee must face questions and concerns from family members and friends, who may never have been informed that the employee was experiencing performance problems and performance coaching at work.

Nor does the average employee come home and share all of the mistakes she has made or the problems he is experiencing with performing his work or carrying out his responsibilities. Sometimes, employees even delude themselves into believing that, while performance issues have been drawn to his attention, they are not serious.

In fact, normally an employee will hide his or her performa


nce problems from family members. This allows the employee to save face, make excuses, and generally, deny responsibility for their ultimate employment termination. This leaves family members more surprised than the employee, if the employee is honest with himself, when employment termination occurs.

Employers are not generally faced with wrongful termination charges that will find them liable unless their actions are illegal. No matter how much the termination may feel unfair or unwarranted to the employee, or his family members, that does not make the employment termination either illegal, unwarranted, or wrong.

Employers, in most states, adhere to an employment at will standard in which the employer has the right to fire an employee and an employee has the right to quit his employment - at will.

Considerations to Avoid Wrongful Termination Charges

Employment termination becomes wrongful termination under these narrow circumstances. (These are not complete, but do list the most commonly considered possibilities.)

  • Breach of contract: the employer has a legal obligation to uphold all components of an employment contract, union-negotiated or otherwise. Most employment contracts have employment termination clauses which the employer must honor.

  • Breach of implied contract: the employer must take care that the company does not imply in writing or verbally that employment is protected or guaranteed or that any other non-contractual obligations exist. This is why most employers ask employees to sign off on an employee handbook statement that states that written company documents offer guidelines, not a contract.

  • Breach of covenant of good faith and fair dealings: the terminated employee can try to prove that their termination was unfair and that an employer did not fire him for good cause, in some states. This is extremely difficult to prove if an employer has kept even a modicum of documentation about an employee's performance problems and managerial counseling. Terminated employees will generally find that “employment at will” is the more significant decision factor.

  • Unlawful discrimination: employment discrimination is illegal. Former employees must file suit with the Equal Employment Opportunity Commission (EEOC), and perhaps their state civil rights commission, before charging an employer in court. An employer protects their organization from such charges by practicing strict care to avoid employment discrimination, or the appearance of employment discrimination, for any reason.

    For example, in a layoff situation, an employer must demonstrate non-discriminatory reasons for why each laid off employee was selected. Laying off all members of an eliminated department, or laying off the 10% of all employees with the least seniority, may keep employers safe from discrimination charges.

Employer should seek legal counsel at their first indication that a former employee intends to press some form of wrongful discharge contentions. This will normally occur either in conversation, emailed correspondence, or with the failure of the former employee to accept and sign off on their employment termination agreement or severance package. Sometimes, however, an employer’s first inkling of a problem occurs when a fact-finding package arrives from state or Federal discrimination agencies.

Even if the employer is crystal certain that their handling of the employment termination was legal, ethical, and appropriate, legal counsel is more experienced in wrongful termination situations than the average employer. Seek counsel.

Disclaimer: Please note that Peter makes every effort to offer accurate, common-sense, ethical Human Resources management, employer, and workplace advice on this website, and the content on the site is not to be construed as legal advice. The site has a world-wide audience and employment laws and regulations vary from state to state and country to country, so the site cannot be definitive on all of them for your workplace. When in doubt, always seek legal counsel. The information on the site is provided for guidance only, never as legal advice.

 
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