In the labor law, dismissal and dismissal are the same meaning, which is a popular saying that the employer voluntarily terminates the labor contract with the employee, and it is one-way and mandatory.

Persuasion is a popular saying that the employer actively negotiates with the employee to terminate the labor contract, which means negotiation and is less mandatory. If the employee agrees with the employer's persuasion, it can be regarded as the employer's initiative to negotiate with the employee to terminate the labor contract.

1. Dismissal, which is clearly the act of the employer taking the initiative to terminate the labor contract, is usually handled in accordance with Articles 36, 40 and 41 of the Labor Contract Law. According to Article 46 of the Labor Contract Law, the employer shall pay economic compensation.

2. Dismissal is also the employer's proposal to terminate the labor contract, but the main basis is Article 39 of the Labor Contract Law, that is, the rules and regulations of the employer where the laborer seriously violates the law. Meanwhile, the labor contract is terminated. The employer does not need to pay economic compensation, and if the laborer's behavior causes losses to the employer, it must pay compensation to the employer.

3. Persuasion, literally means negotiation between employers and employees. The purpose of negotiation is to ask the laborer to terminate the labor contract voluntarily, and the employer can be exempted from paying economic compensation.

Two, workers are dismissed, dismissed and dismissed by the employer, whether compensation or compensation should be given, generally divided into the following four situations:

1, illegal termination. The employer terminates the labor relationship with the employee without justifiable reasons, fails to pay economic compensation or fails to perform legal procedures, and the employee does not have the circumstances stipulated in Article 39 of the Labor Contract Law (such as serious violation of the rules and regulations of the employer, causing heavy losses to the employer, and being investigated for criminal responsibility by the judicial organs for illegal acts, etc.). ), it can be concluded that the employer's behavior belongs to the illegal dissolution as stipulated in Article 87 of the Labor Contract Law, and it should be compensated. The standard is to pay my salary for 2 months every year of work, commonly known as 2n;

2. Legal dissolution but need to pay economic compensation. If the employer terminates the labor relationship with the employee according to the circumstances stipulated in Article 19 of the Regulations for the Implementation of the Labor Contract Law, and it is in line with Article 46 of the Labor Contract Law (the employee is not at fault), it shall pay the employee economic compensation, that is, pay one month's salary for each year of work, n; For example, if the employer dissuades the employee, it should pay economic compensation, that is, n;

3. Legal dissolution requires payment of economic compensation and payment in lieu of notice. If the employer proposes to terminate the labor relationship according to Article 40 of the Labor Contract Law and fails to notify the employee in writing 1 month in advance, it shall pay an additional salary of 1 month as a payment in lieu of notice, totaling n+1; In other words, only in accordance with the provisions of Article 40 of the Labor Contract Law, the employer does not need to pay the notice fee of the laborer in advance;

4. The workers are at fault. If the laborer has the circumstances stipulated in Article 39 of the Labor Contract Law (such as serious violation of the rules and regulations of the employer, causing heavy losses to the employer, and being investigated for criminal responsibility by the judicial organs for illegal acts, etc.). ), if the employer proposes to terminate the labor relationship in accordance with legal procedures, it does not need to pay any economic compensation or notify the employee in advance; However, this requires the employer to provide evidence and notify the employee in writing to terminate the labor relationship.

Three, the main basis of laws and regulations:

Article 39 of the Labor Contract Law may terminate the labor contract under any of the following circumstances:

(a) during the probation period, it is proved that it does not meet the employment conditions;

(two) a serious violation of the rules and regulations of the employer;

(three) serious dereliction of duty, corruption, causing great damage to the employer;

(4) The laborer establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the unit, or the employer refuses to correct it;

(5) The labor contract is invalid due to the circumstances specified in Item 1 of Paragraph 1 of Article 26 of this Law;

(6) Being investigated for criminal responsibility according to law.

Article 40 Under any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an extra month's salary:

(1) The employee is sick or injured non-work-related, and cannot engage in the original job or other jobs arranged by the employer after the prescribed medical treatment period expires;

(two) the laborer is not competent for the job, and he is still not competent for the job after training or adjusting his post;

(3) The objective conditions on which the labor contract was concluded have changed greatly, which makes it impossible to perform the labor contract, and the employer and the employee cannot reach an agreement on changing the contents of the labor contract through consultation.

Article 46 Under any of the following circumstances, the employing unit shall pay economic compensation to the workers:

(1) The laborer terminates the labor contract in accordance with the provisions of Article 38 of this Law;

(2) The employing unit proposes to terminate the labor contract with the laborer in accordance with the provisions of Article 36 of this Law, and the labor contract is terminated through consultation with the laborer;

(3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law;

(4) The employer terminates the labor contract in accordance with the provisions of the first paragraph of Article 41 of this Law;

(5) Terminating a fixed-term labor contract in accordance with the provisions of the first paragraph of Article 44 of this Law, except that the employer maintains or improves the conditions stipulated in the labor contract to renew the labor contract and the employee does not agree to renew it;

(6) The labor contract is terminated in accordance with the provisions of Item 4 and Item 5 of Article 44 of this Law;

(seven) other circumstances stipulated by laws and administrative regulations.

Forty-seventh economic compensation shall be paid according to the standard of one month's salary for each full year of work in the unit. For more than six months but less than one year, it shall be counted as one year; If it is less than six months, economic compensation of half a month's salary shall be paid to the workers.

If the monthly salary of workers is three times higher than the average monthly salary of local workers announced by the people's government of the municipality directly under the central government or the city with districts where the employer is located, the standard for paying economic compensation to workers is three times the average monthly salary of workers, and the longest period for paying economic compensation to workers shall not exceed 12 years.

The monthly salary mentioned in this article refers to the average salary of workers in the twelve months before the dissolution or termination of the labor contract.

Article 87 Where an employing unit dissolves or terminates a labor contract in violation of the provisions of this Law, it shall pay compensation to the laborer at twice the economic compensation standard stipulated in Article 47 of this Law.

Article 19 of the Regulations for the Implementation of the Labor Contract Law of the People's Republic of China is under any of the following circumstances. In accordance with the conditions and procedures stipulated in the Labor Contract Law, the employing unit may terminate a fixed-term labor contract, an open-ended labor contract or a labor contract whose term is to complete a certain task:

(a) the employer and the employee reached an agreement through consultation;

(2) The employee is proved not to meet the employment conditions during the probation period;

(3) The laborer seriously violates the rules and regulations of the employing unit;

(4) The laborer seriously neglects his duty or engages in malpractices for selfish ends, thus causing great damage to the employing unit;

(5) Laborers establish labor relations with other employers at the same time,

(6) The laborer enters into or changes a labor contract against his true intention by means of fraud or coercion or taking advantage of the danger of others;

(seven) the laborer is investigated for criminal responsibility according to law;

(8) The employee is sick or injured non-work-related, and cannot engage in the original job after the prescribed medical treatment period expires, nor can he engage in other jobs arranged by the employer;

(nine) the laborer is not qualified for the job, and he is still not qualified for the job after training or adjusting his post;

(10) The objective conditions on which the labor contract was concluded have changed greatly, which makes it impossible to perform the labor contract, and the employer and the employee cannot reach an agreement on changing the contents of the labor contract through consultation;

(eleven) the employer is reorganized in accordance with the provisions of the enterprise bankruptcy law;

(twelve) the employer has serious difficulties in production and operation;

(thirteen) the enterprise production changes, major technological innovation or adjustment of operation mode, and it is still necessary to reduce the number of employees after changing the labor contract;

(14) Other major changes have taken place in the objective economic conditions on which the labor contract was concluded, which made it impossible to perform the labor contract.

Extended data:

Dismissal refers to the legal system in which state organs, enterprises, institutions and social organizations dismiss employees from their subordinate units.

Conditions for dismissing employees

According to Article 2 of the Interim Provisions on Dismissal of Disciplinary Employees by State-owned Enterprises issued by the State Council (Guo Fa [1986] No.77), if an employee commits one of the following acts and is still ineffective after education or administrative sanctions, the enterprise may dismiss him:

1, which seriously violates labor discipline and affects production and work order.

2, in violation of operating rules, damage to equipment, tools, waste of raw materials, energy, resulting in economic losses.

3. Poor service attitude, often quarreling with customers or harming consumers' interests.

4. Disobeying normal transfer.

Corruption, theft, gambling and corruption are not enough for criminal punishment.

6, unreasonable, fighting, seriously affecting social order.

7. Having committed other serious mistakes.

Employees who meet the conditions of dismissal and dismissal shall be subject to the Regulations on Rewards and Punishment of Enterprise Employees.

Common improper dismissal has the following common situations.

1, many enterprises have no transparency when dismissing employees, and the dismissed employees leave inexplicably; Managers dismiss employees because of personal grievances and publish personal grievances;

2. Deducting the wages of laid-off workers occurs from time to time, especially in private enterprises and private enterprises;

3. Many managers have made great contributions to the company, and may be dismissed because of a small mistake; After the dismissal, the manager blamed the dismissal at will.

4. Being dismissed for serious violation of rules and regulations, company rules and regulations and national laws.

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