Detention Should Be No Ground for Termination Of Contract in China!
Karma Global Possesses a Panel of International Experts Be It
(1) Strategy Consultant
(2) Management Consultant
(3) Operations Consultant
(4) Financial Advisory Consultant
(5) Human Resource Consultant
Karma Management has now become Karma Global which was incorporated in the year 2004, having now completed almost 19 years of its existence.
As late as April 2021, Karma Global took a very bold step of venturing into foreign shores in terms of shoving up its business prospects in countries like US, UK, UAE, Canada, Philippines and South East Asia.
It has already made its mark in terms of providing excellent services in the areas of payroll, outsourcing, recruitment and talent acquisition, facility management services and regulatory compliances including immigration, negotiations and employment contracts in these foreign countries as well.
The major services provided by Karma Global include Regulatory Audit, Management Consulting, Strategy Consulting, Financial & Tech Advisory, Risk Advisory, and Legal.
It follows a strict culture of work and ethics with highly motivated and zealous employees. The company values traits like loyalty, integrity, and dynamism.
Karma Global thus entails the compliances of international clients in keeping with the global scenario, thereby undertaking a noteworthy mission of guiding clients through spider’s web of legislation so that clients are able to stay on the right side of the ever changing laws especially so, it keeps an update on what is happening around the world as far as people, wages, work, benefits, employment contracts, negotiation and unions are concerned.
Karma Global’s decades of experience in making sure that clients are compliant with all types of changing legislation, offers unique support to mitigate risk and grasp technological solutions with combination of expertise.
Disruptive technologies, as well as new market competitors will continue to challenge the long-term economic hegemony of Agencies, Institutions and Governance and will need the assistance of tech enabled consultants like Karma Global. In order to avoid becoming bystanders in the race for digitization, companies of all sizes are engaging consulting firms in order to assist them with technological and business transformations. Meanwhile, a sustained period of geo-political uncertainty arising from the unknown areas, Global clients are keen to re-examine their international operations, in order to plan for worst case scenarios relating to new crises that may arise from such unpredictable variables. Therefore, this is the right time to look up to Karma Global for any and all international operations in the fields mentioned above.
Detention Should Be No Ground for Termination Of Contract in China!
China labour laws: An overview for global employers
Labour Laws of the People’s Republic of China!
In China, there are legal frameworks that serve as an overview for employers, covering a range of subjects, including employment contracts, working hours, salary, labour disputes and negotiations, and more. Technically speaking, these rules are protective of workers’ rights.
The laws that have been codified over several different documents and resolutions include:
- Chinese Constitution
- 1995 Labour Law of the People’s Republic of China
- 2008 Labour Contract Law of the People’s Republic of China
- Law of the People’s Republic of China on Labour Dispute Mediation and Arbitration
- Labour Union Law of the People’s Republic of China
- Law of the People’s Republic of China on Work Safety
- Social Security Law
- Regulations promulgated by the Ministry of Human Resources and Social Security (the “MOHRSS”) and other ministries and commissions of the State Council
For foreign-registered employers and employees, the China labour laws and regulations are not applicable to the employment relationship. But for employers interested in hiring in China, you must abide by the rules and register the company with the Chinese Communist Party in order to avoid permanent establishment.
The entity registration process with the state can be a complex and time-consuming process, filled with applications for registration, permits and licensing in addition to the laws that are regularly changed or updated by the government.
Staying up to date can be a significant undertaking, to say the least. This is why many foreign companies opt to partner with compliance organizations that are knowledgeable on most current legal and labour standards.
Employment contracts
In China, an employment relationship must involve a written contract to be legal.
After an employee’s first day of work, an employer has a 30-day grace period to provide the contract. Failure to do so will result in a penalty of double wages to the employee for every month that goes by without them having a written contract. If a year goes by without a contract, it automatically is classified as an open-ended contract.
Common elements of an employment contract in China include:
- Contact information of employer and its legal representatives
- Contact information of the employee, along with an ID card number
- Contract terms
- Expected work responsibilities
- Work location
- Work hours
- Vacation and sick time
- Compensation
- Social insurance
- Workplace safety protections
In China, there are three types of employment contracts:
Fixed-term labour contracts – These set a specific term limit on employment, regardless of whether it’s full-time or part-time work.
Open-ended contracts – There is no set date of determination. The contract can only end via mutual agreement.
Project-based contract – The work timeline is defined by the undertaking and completion of a specific task or project. Once it’s complete, the contract is absolved.
Termination
In China, there are four statutory grounds of employee termination. They are:
Termination by mutual agreement – Both the employer and employee agree at any time to revoke the labour contract if they reach consensus through discussion.
Termination by employee – An employee may voluntarily quit. If they do so, they must provide a 30 days’ written notice.
Termination by the employer – An employer can immediately and unilaterally terminate an employment contract for employee misconduct.
Automatic termination – If any of the following conditions are met, the contract is automatically voided:
Contract term has expired
Employee reached statutory retirement age
Employee is dead or declared “missing” by the government
The employer declares bankruptcy
The employer’s business license is revoked
Employees being detailed, is it a valid ground for termination of labour contract, let us find out what it is?
If detained and if termination of contract happens, the basis of termination was cited as article 39.1.2 of the Labour Contract Law – “serious violation of the employer’s rules and regulations”, or article 39.1.6 – “held criminally liable under the law”.
DFEPENDENCY ON APPLICATION OF THE ARTICLE OF LABOUR CONTRACT LAW:
Being detained does not equal to being held criminally liable.
According to article 39.1.6 of the Labour Contract Law, where the labourer is held criminally liable under law, an employer may terminate his/her labour contract. In practice, many employers take this article for granted by citing it as grounds for termination as soon as an employee is detained.
However, under article 28.1 of the Opinions on Several Issues of Implementing the Labour Law by the then ministry of labour: “Where the labourer is suspected of committing an offence and is taken into custody, detained or arrested by the relevant authority, the employer may temporarily suspend the performance of the labour contract while the labourer’s personal freedom is restricted.”
Therefore, detention – no matter whether criminal, administrative or judicial – is not the same as “being held criminally liable” under the Labour Contact Law. Being detained, then, cannot be cited as a reason to terminate a labour contract. However, employers may temporarily suspend contracts.
Application of serious breach of rules and regulations.
By comparison, more employers in these scenarios choose to apply article 39.1.2 of the Labour Contract Law. This allows an employer to terminate a labour contract if an employee seriously breaches the company’s rules and regulations.
The rationale behind this is that, by being detained – itself a result of the employee’s personal illegal activity – an employee has directly caused an inability to perform the labour contract. Therefore, if an employer has explicitly set out regulations that cite being detained as a serious disciplinary offence, the employer is usually permitted to terminate the employment.
CONCLUSION: IMPORTANT TO CLARIFY EXACT NATURE OF DETENTION:
- Employers are recommended to clarify the exact nature of a detention and whether it constitutes a serious disciplinary offence when formulating relevant regulations;
- A democratic negotiation procedure should be conducted for these regulations in accordance with article 4 of the Labour Contract Law;
- Labourers should be lawfully informed of the regulations; and evidence should be retained.
If an employee is detained, the employer should determine the cause of termination based on facts, proceed with the termination according to law and, most notably, exhaust all means to deliver the notice of termination to the labourer.
Karma Global while dealing with all such issues and cases, always takes the approach to act trust-worthily and to be compliant with the laws of the land.
Karma Global encourages employees to promptly raise concerns about safety, quality, potential violations of the law, or on its various policies.
Karma Global also works to foster an environment in which employees feel safe seeking guidance, raising concerns, and identifying areas for improvement.
Karma Global also believes and appreciates that speaking up may not always be easy, and the company offers several options for raising concerns confidentially, including through managers, toll-free phone numbers, and web-based portals.
Karma Global has a policy of code of ethics in place and the HR Head is also designated as the Site Compliance and Ethics Officers to provide in-person and online support to employees who are looking for guidance or need to report a concern, and can provide additional compliance and ethics resources. Any retaliation against employees who raise a concern is not tolerated and is grounds for discipline, up to and including termination.
Our deep, country-by-country knowledge, expressed through a 250 -strong network of local offices, makes light work of the most intricate local and global reporting obligations.
Proprietary blog of Karma Global Tech Management LLC
This blog has been collated and compiled by the internal staff of Karma Global with the knowledge and expertise that they possess, besides adaptation, illustration, derivation, transformation, collection and auto generation for its monthly newsletter Issue 11 of May 2023 and in case of specific or general information or compliance updates for that matter, kindly reach out to the
Marketing Team – Kush@karmamgmt.com / yashika@karmamgmt.com