Damages for Unlawful Termination when Labor Union not Informed

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The following provisions of the Labor Contract Law of the People’s Republic of China (LCL) and Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases (1) detail legal stipulations on damages for unlawful termination when an employer unilaterally terminates a labor contract but fails to inform the labor union in advance of the termination.

As part of the requirements for “democratic process” if an employer unilaterally terminates a labor contract, that employer must first notify the labor union. If this notification requirement for democratic process is not fulfilled, then the worker can claim economic damages for unlawful termination as described in LCL 47 and 87.

Courts have differed on what, if any, obligations employers who have not established labor unions have for notification in cases of unilateral termination by the employer. Some have held that the employer has an obligation to notify a local general labor union or seek the input of worker representatives. Others have held that there is no notification obligation.

(1) Labor Contract Law of the People’s Republic of China

http://english.www.gov.cn/archive/laws_regulations/2014/08/23/content_281474983042501.htm 

中华人民共和国劳动合同法

http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/fl/201605/t20160509_239643.html

Article 43 - Requirement to Notify the Labor Union in Unilateral Termination by the Employer

Where an employing unit intends to revoke a labor contract unilaterally, it shall notify the trade union of the reasons in advance. If the employing unit violates the provisions of laws or administrative regulations or the labor contracts, the trade union shall have the right to demand that the employing unit put it right. The employing unit shall consider the trade union’s opinion and notify the trade union in writing of the settlement of the matter.

第四十三条

用人单位单方解除劳动合同，应当事先将理由通知工会。用人单位违反法律、行政法规规定或者劳动合同约定的，工会有权要求用人单位纠正。用人单位应当研究工会的意见，并将处理结果书面通知工会。

Article 47 - Calculation of Economic Compensation (Severance)

Financial compensation shall be paid on the basis of the number of years a person works in a unit, the rate being one month’s salary for the work of one full year. If he has worked for six months or more but less than one year, the time shall be calculated as one year; and if he has worked for less than six months, he shall be paid half of his monthly salary as financial compensation.

If the monthly salary of a worker is three times the average monthly salary of the workers of the region for the previous year, which is published by the people’s government of the municipality directly under the Central Government or by that of the city divided into districts where the employing unit is located, the rate for his financial compensation payable shall be three times the average monthly salary of the workers, and the number of years involved shall not exceed 12 years.

For the purposes of this Article, the monthly salary means the average of a given worker’s monthly salary for the 12 months prior to the revocation or termination of the labor contract.

第四十七条

经济补偿按劳动者在本单位工作的年限，每满一年支付一个月工资的标准向劳动者支付。六个月以上不满一年的，按一年计算；不满六个月的，向劳动者支付半个月工资的经济补偿。

劳动者月工资高于用人单位所在直辖市、设区的市级人民政府公布的本地区上年度职工月平均工资三倍的，向其支付经济补偿的标准按职工月平均工资三倍的数额支付，向其支付经济补偿的年限最高不超过十二年。

本条所称月工资是指劳动者在劳动合同解除或者终止前十二个月的平均工资。

Article 87 - Economic Damages (Double Severance)

Where an employing unit revokes or terminates a labor contract in violation of the provisions of this Law, it shall pay compensation to the worker two times the rate of financial compensation specified in Article 47 of this Law.

第八十七条

用人单位违反本法规定解除或者终止劳动合同的，应当依照本法第四十七条规定的经济补偿标准的二倍向劳动者支付赔偿金。

(2) Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Dispute Cases (1)

最高人民法院关于审理劳动争议案件适用法律问题的解释（一）

http://www.court.gov.cn/fabu-xiangqing-282121.html

Article 47 - Failure to Give Advance Notice Justifies Damages

If an employer which has established a trade union organization dissolves a labor contract in accordance with the provisions of Article 39 or 40 of the Labor Contract Law, but fails to serve an advance notice on its trade union in accordance with the provisions of Article 43 of the Labor Contract Law, and the laborer concerned requests the payment of damages from the said employer on the grounds that the dissolution of its labor contract by the employer violates the law, the people's court shall uphold the request, except where the said employer has supplemented and corrected the relevant procedures before lawsuit is filed.

第四十七条

建立了工会组织的用人单位解除劳动合同符合劳动合同法第三十九条、第四十条规定，但未按照劳动合同法第四十三条规定事先通知工会，劳动者以用人单位违法解除劳动合同为由请求用人单位支付赔偿金的，人民法院应予支持，但起诉前用人单位已经补正有关程序的除外。

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