By Fanny Zhang, Dezan Shira & Associates Beijing Workplace
The expiration of a fixed-term labor contract is among the reputable grounds to terminate an worker as stipulated in Article 44 of the Labor Contract Regulation of the PRC (“LCL”).
Nonetheless, the LCL, the Implementation Laws for the Labor Contract Regulation, and associated judicial interpretations don’t present additional stipulations on the procedures of terminating an worker upon expiration. Consequently, some employers wrongly imagine that the labor contract will terminate mechanically with none procedural necessities, and there’s no have to notify the worker when it expires. This isn’t at all times true.
After researching and looking out into the native laws, normative paperwork, and native judicial practices of 31 provinces, municipalities, autonomous areas and Xinjiang Building Corps, we discovered that a number of provinces have made clear provisions on the discover time and different formalities on termination of labor contract upon expiration. Improper practices, comparable to overdue discover, will result in wrongful termination and set off authorized liabilities.
Procedural necessities of termination upon expiration
On this article, we summarize the related provisions on procedural necessities of termination upon expiration into the next conditions:
1. 30-days’ discover prematurely earlier than the expiration of the labor contract
Beijing, Liaoning, Heilongjiang, Jilin, Ningxia, and Xinjiang Building Corps stipulate that the employer ought to notify the worker in writing to terminate the labor contract 30 days prematurely earlier than the expiration of the labor contract.
Though the Tibet Autonomous Area has no laws on the matter as a complete, Lhasa Metropolis stipulates that employers ought to notify workers 30 days prematurely earlier than the expiration of the labor contract.
2. Terminating the labor contract inside a sure interval earlier than the expiration of the labor contract
This case requires the employer to conduct the formalities for terminating the labor contract inside a sure interval earlier than the labor contract expires.
For instance, in keeping with Fujian laws, upon the expiration of the primary fixed-term labor contract signed by the employer and the worker, if the employer doesn’t intend to resume the labor relationship or the worker doesn’t comply with renew after soliciting opinions, they’re required to provoke the termination procedures inside three days earlier than the expiration of the labor contract.
3. The labor contract shall terminate without delay upon expiration
Shanxi, Zhejiang, and Tianjin all stipulate that the labor contract shall be terminated as quickly because the labor contract expires. No extra procedures and formalities are required to be carried out by the employers.
4. Notifying the worker inside a sure interval after the expiration of the labor contract
In response to the laws of Xinjiang Autonomous Area, the place the employer maintains or improves the stipulated circumstances of the labor contract and informs the worker in writing to resume the labor contract, however the worker refuses, the employer can notify the worker concerning the termination inside one month after the expiration of the labor contract.
In response to the laws of Guangzhou Metropolis, the employer shall notify the worker concerning the termination 30 days prematurely inside one month after the expiration of the labor contract.
5. Notifying prematurely to resume the labor contract earlier than the expiration of the labor contract
Though there are not any particular provisions on the termination procedures of labor contracts upon expiration in some provinces, it’s typically clearly stipulated that employers are required to inform the worker prematurely previous to the expiration to resume labor contract.
For instance, in keeping with the laws of Jiangsu Province, when the worker meets the circumstances for acquiring an open-term labor contract, the employer shall inform the worker 30 days earlier than the expiration of the fixed-term labor contract about that.
Liabilities of failing to adapt with the procedural necessities
The authorized legal responsibility for failing to adjust to the procedural necessities the place there are clear laws – varies from one metropolis to a different.
For instance, in Beijing, the employer shall pay the compensation of every day wage for every day’s discover delay. In Ningxia, the labor administrative division shall order corrections, and if inflicting any financial losses to workers, the employer shall be answerable for compensation in accordance with the regulation.
When the labor contract of the worker expires, the employer shall take note of the related native laws, consider and undergo the procedures for terminating the labor contract in accordance with the regulation to stop authorized dangers of unlawful operations. Particularly for overseas companies, which preserve operations in several cities, their HR departments are advised to look at the precise provisions of native regulatory paperwork and the judicial judgments on the matter to maintain compliance.
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