Nutshell
On September, 2010, Mr Wang is hired by a Shanghai property management company as a human resource personnel with an income of 4000 yuan. They came into a contract from September 1, 2010 to August 31, 2015.
On April 15, 2015, Mr Wang got drunk after work and fight with someone over some trifles, then the police arrested him for 3 days. The company terminated his contract on severe disciplinary violation and impact on company image.
Mr Wang thinks the termination is illegal, after no result come out of negotiation, he claim damage of 20000 yuan to the labor tribunal.
Issue
The issue of this case is whether administrative detention can lead to legal labor contract termination?
The company thinks Mr Wang is arrested by the police, which breached the company rules, similar to Art 39 of the Labor Law that an employer may terminate an employment contract if the employee has his criminal liability pursued in accordance with the law.
Mr Wang thinks the company rules did not stated that administrative detention is a major breach. Therefore the company shall pay damage without the legal base to terminate.
Judgment
The tribunal thinks that according to Art 39 of the Labor Law that an employer may terminate an employment contract if the employee has his criminal liability pursued in accordance with the law, the company rules did not stated that administrative detention is a major breach, therefore the company shall pay damage without the legal base to terminate.
Administrative detention in this case is different from criminal liability in the law, therefore the clause shall not be applied here. The company shall pay the damage of 20000 yuan for illegal termination.
Comment by Lawyer Tang
Art 39 of the Labor Law provides that an employer may terminate an employment contract if the employee has his criminal liability pursued in accordance with the law. Administrative detention is not a kind of criminal liability, but an administrative penalty for public order violator. There are disputes in legal practice whether the employer can terminate the contract on administrative penalty. Some holds that the company rule, made through democratic process, can provide that administrative detention is a major breach. Some holds the kind of rule is unlawful as against the law as the law only permit the employer to terminate employee pursued with criminal liability. Employer shall not expand the management right to personal life. We think whether administrative detention can be a base to terminate labor contract depends on firstly whether the company rule explicitly regulates it a major breach. And secondly days and reason for the detention shall be considered. If the days are short and purely negligence, we do not suggest termination. If it is over ten days for the behaviors severely breach public order and good faith such as gambling, fighting, whoring etc, then the employer may tend to terminate.
Therefore for administrative detention, the termination shall be decided case by case.
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