Protecting Employees from Unfair Dismissal in Chinese Courts: An Empirical Study on Serious Breach Dismissal Cases

Project: Research

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Researcher(s)

Description

The project assesses the efficacy of China’s legal process in protecting employees against unfair dismissal. It investigates judicial decisions, asking how effectively judges protect employees who challenge the fairness of their dismissal. The central components of the research are a comprehensive national survey of all adjudications over a 9 year period of an important category of unfair dismissal cases -- the “serious breach” dismissals --, an evaluation of the change in the judicial approach to this type of cases before and after the implementation of the relevant employee-protection regulations and a qualitative study based on interviews with judges.Serious breach dismissal cases are particularly important to understanding the efficacy of China’s employee protection regime because the right of an employer to terminate immediately an employee who commits a “serious breach” of its internal regulations is prone to manipulation. Article 39(2) of China’s Labour Contract Law provides that an employer who exercises the right incorrectly must compensate the employee for unfair dismissal but nowhere does Chinese law provide a test for unfair dismissal. It is therefore up to the courts to decide whether a dismissal that the employee contests is unfair or not. One key issue in making that decision is whether a court has an obligation to review the reasons that the employer cites as grounds for a “serious breach”. If the court considers that it has no obligation to review those reasons then it in effect simply confirms whatever decision the employer has made, no matter how unfair and wrongful that decision is. Since judges’ understanding of whether their courts are bound to review the “fairness” of the dismissal is crucial to the outcome of serious breach dismissal cases, it is important to know how judges decide this question but no comprehensive empirical study of this type of cases in China has been conducted to date.This project seeks to fill that gap by conducting an empirical analysis of a representative sample of all available “documents of adjudication decisions” on serious breach dismissal cases in every Chinese court from 2010 to 2018, coupled with in-depth fieldwork at the basic-level courts in a major Chinese city. 

Detail(s)

Project number9042914
Grant typeGRF
StatusActive
Effective start/end date1/01/20 → …