When the labor contract is terminated, how to issue a notice of termination of the labor contract to the employee?

When the labor contract is terminated, how to issue a notice of termination of the labor contract to the employee? The following is Bian Xiao's sharing. I hope you like it.

The dismissal of workers by employers generally includes five situations: termination of labor contracts in violation of laws and regulations, termination of all normal labor contracts, termination of economic layoffs, termination of labor contracts through consultation and termination of labor contracts. In addition, there are five kinds of situations to terminate the labor relationship with objective facts.

When the employer and the employee dissolve or terminate the labor contract, they shall serve the employee with a notice of dissolution or termination of the labor contract and produce the certificate of dissolution or termination of the labor contract; For objectively existing labor relations, the employer shall serve the employee with a notice of termination of labor relations and issue a certificate of termination of labor relations. For the convenience of this article, why not refer to the above notice as dismissal notice and the supporting documents as dismissal documents?

If the dismissal notice of the employer is not delivered to the laborer, it is useless; When will the served notice of dismissal take effect gradually, the date when the employer decides to dismiss the employee or the date when the notice of dismissal is served? At this stage, the actual cognition of the procuratorial and judicial departments is not consistent. It is true that some people think that the date of the employer's decision to dismiss is the date when the notice of dismissal is served. This points out a difficult problem, is the effective time and delivery time of the dismissal notice the same time? If not, what is the connection and difference between the two? I think we must study this problem carefully and accurately and seek fairness.

In my opinion, the effective time and delivery time of the notice of dismissal are different. The effective time of the notice of dismissal shall be the date when the employer makes a choice. For example, there is a statement in the notice that "the enterprise decided to terminate the labor contract with you on a certain day in a certain year". Therefore, the time to terminate the other party's labor contract should be the day when the enterprise makes a decision. The official reply of the former Policy Research Office of the Ministry of Social Security on the effective time for enterprises to dismiss employees who violate discipline requires: "In general, the dismissal decision takes precedence over the dismissal certificate. Therefore, the effective time for dismissing employees who violate the law and discipline needs to be calculated from the date when the dismissal decision is made, and it should be indicated on the dismissal certificate. "

I think this requirement is in line with the actual situation. The delivery time of the notice of dismissal is the time when the employee knows or should know that he is dismissed. If the employee refuses to accept the notice of dismissal, the date of labor arbitration shall be the date of delivery. This is clearly manifested in the second paragraph of Article 1 of the Interpretation of the Supreme Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (Fa Shi [2006] No.6), that is, "the employer cannot prove that it has informed the employee in writing of the time to dissolve or terminate the labor relationship objection, and the employee thinks that the date of control is the date of labor arbitration".

The communication between the effective time and the delivery time of the dismissal notice depends on: if the dismissal notice is not delivered, it will not be recognized legally; Only after delivery can it be legally recognized.

The difference between the two is that the effective time of the dismissal notice is the time when the employer decides to dismiss the employee; The delivery time is the time when the laborer knows or should know that he is dismissed, that is, the date when the labor arbitration comes into being. Therefore, the effective time and delivery time of the notice of dismissal cannot be confused, otherwise it will not be made public. For example, the employer has gone through the resignation procedures for the workers according to the decision time of the dismissal notice, and the payment of wages and social security has stopped; From now on, workers will no longer provide their employers with normal jobs, and their labor relations have ended.

If the procuratorial and judicial organs assess that the completion time of their labor relations is the time when the dismissal notice is served, they should confirm that there is still a labor relationship between them from the time when the dismissal notice is determined to the time when it is served, even if the employer? If the labor contract is dissolved or terminated in accordance with the regulations, the employee may also pay the salary or basic living expenses during this period and pay social security. If the process of labor arbitration is very long, it will be difficult for workers to pay back social security, which is difficult to operate in practice. Obviously, it is neither practical nor fair to evaluate the delivery time as the effective time of the employer's dismissal notice.

In short, the effective time and the delivery time of the dismissal notice are not the same time, and should be strictly and accurately distinguished. Naturally, everything is uncertain. Some labor dispute cases are more complicated, and there will be cases where the delivery time should be evaluated as the effective time of the notice of dismissal, which should be analyzed in detail.

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