Dismissal of an employee in case of corruption under laws of China

Recently I handled a case in which a FDI company in China decided to fire several employees who are suspected of acceptance of bribe. They came to our lawyers’ office to consult about the pre-plan and possible risk therein.
First of all, bear in mind that the company is obligated to prove that the employee is should be dismissed according to the labor law. In case that a company who dismiss a employee fails to present enough proofs to substantiate his/her dismissal. Then the company, instead of employee, shall take the consequence because of failure to do so.
Possible circumstances in which a company could justify the dismissal are stipulated in the clause 2 and 6 of article 39 under the law of labor contract of China. Article 39 of Labor Contract Law says: the employing unit may have the labor contract revoked if a worker is found in any of the following circumstances: (2) seriously violating the rules and regulations of the employing unit; (6) being investigated for criminal responsibility in accordance with law.
To substantiate the legitimacy of dismissal, a company could adopt different measures by the severity of a bribe. In a case that an employee dishonestly accepts a comparatively bigger amount of money, the police may involve and a criminal investigation may start. In this situation, the company could wait for the outcome of the police’s investigation. Subsequently, the company may send a notice of dismissal based on the conclusion of the investigation.
However, there are many bribery cases into which no police investigate, where because the amount don’t reach the requirement of criminal registration or any other reason. In such cases it is harder for the company to present enough proofs justify the dismissal. According to a search of the court or arbitration decision already existed, most of the dismissal is decided to be illegal and/or overrun by the court/arbitration decision, while only a few of them are upheld.
Hence, the company in China must be very careful to take measures of labor contract cancellation. To prove that it’s lawful to dismiss an employee according to clause 2 of article 39 of labor contract law: the company not only have a definite regulations which should be acknowledged by employees but also need to collect enough evidence to prove the bribery.

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