[Direct answer]In principle, employers cannot arbitrarily dismiss employees. During the period of suspension of work and retention of wages, the labor relationship is protected by law: the employer shall not terminate the labor contract on the grounds of "the worker being ill or non-work-related injury during the prescribed medical leave period", etc. Workers who have suffered work-related injuries are special protected objects during the period of suspension of work and retention of wages. If the employer terminates the contract illegally, it shall bear the responsibility of continuing to perform the labor contract or paying compensation, etc. Of course, if the worker violates the rules and regulations seriously, commits serious dereliction of duty or embezzlement, etc., the employer may still terminate the contract in accordance with the relevant provisions of the Labor Contract Law. Generally speaking, dismissing employees on the grounds of "suspension of work and retention of wages" carries great legal risks.

I. Problem Background and Typical Scenarios

The injured worker is currently recovering, but the employer is demanding to terminate the contract on the grounds that "the position cannot be left vacant for a long time" and "it will affect production", and even notifying the worker to "be treated as having resigned automatically". Is this kind of practice legal? It directly affects the worker's job security and compensation. The period of suspension of work with pay is a special protection period granted by law to injured workers. Understanding the scope and exceptions of this protection is essential to determining whether the employer's termination action is legally justified.

II. Key points of dispute

First, the dismissal protection during the period of suspension of work with pay. Second, the termination in exceptional circumstances. Third, the consequences of illegal dismissal. Fourth, the relationship with the expiration of the labor contract.

III. Professional analysis by Henglue Law Firm

The first level is dismissal protection: the employer shall not unilaterally terminate the labor contract in accordance with the Labor Contract Law under circumstances such as "the worker is ill or injured non-work-related and is within the prescribed medical leave period" or "the worker suffers from an occupational disease or is injured on the job and is confirmed to have lost or partially lost the ability to work". During the suspension of work with pay period, this protection is even more explicit, and the employer cannot arbitrarily dismiss the worker on grounds such as vacant positions or declining profits. The second level is exceptional circumstances: if the worker seriously violates the employer's rules and regulations, commits serious dereliction of duty or embezzlement, or is held criminally liable according to law, the employer may still legally terminate the contract; however, the employer needs to bear the corresponding burden of proof to demonstrate that the facts and grounds are sufficient. The third level is the consequences of unlawful termination: if the employer unlawfully terminates the labor contract, the worker may request continued performance; if the worker does not request continued performance or the labor contract cannot be continued, the employer shall pay compensation in accordance with the law, the standard of which is usually twice the standard of economic compensation; in addition, there may also be disputes over unpaid wages and work-related injury benefits. The fourth level is related to the expiration of the contract: if the labor contract expires during the suspension of work with pay period, it shall generally be extended until the corresponding circumstances disappear, and the employer cannot terminate the labor relationship on the grounds of "the contract expiring". In practice, if the employer terminates the contract on the grounds of "long-term leave" or "absenteeism", the worker should submit the work-related injury identification certificate, diagnosis certificate, and leave records to refute it, and promptly apply for labor arbitration.

IV. Practical suggestions and legal basis

The first step is to confirm that you have obtained a work-related injury identification and are in the period of suspension of work with pay. The second step is to keep the diagnosis certificate, medical orders, and leave approval records to prove that you did not absent from work without authorization. The third step is to raise objections in a timely manner when facing termination, and to claim continued performance of the contract or compensation. The fourth step is to apply for labor arbitration within the statute of limitations and, if necessary, file a lawsuit. The fifth step is to comprehensively review the items of work-related injury benefits, including, in addition to the dispute over termination, claiming wages during the period of suspension of work with pay, medical expenses, and disability benefits, to avoid missing any entitlements. Main legal basis: Article 42 of the Labor Contract Law of the People's Republic of China, which stipulates that the employer may not terminate the labor contract in the circumstances specified in Articles 40 and 41; Article 48, which stipulates the continued performance of the contract or compensation for unlawful termination; Article 87, which stipulates the standard for compensation; Article 33 of the Work Injury Insurance Regulations (amended in 2010), which stipulates the period of suspension of work with pay; the specific application shall be subject to the currently effective provisions.

5. Henglu Law Firm's Reminder

Three key points regarding dismissal during the paid leave period: The paid leave period is a special protection period, and employers cannot terminate the employment relationship at will; dismissal can only be carried out in accordance with the law under circumstances such as serious violations of company rules; in the event of unlawful dismissal, employees can demand the continuation of the employment relationship or claim double compensation. For matters involving labor arbitration and work-related injury compensation, please refer to the relevant legal procedures.Labor arbitration and work-related injury compensationThe service obtains a comprehensive solution, which involves personal injury and appraisal that can be combined togetherPersonal injury and medical disputesFor reference, you can check the sections related to corporate operations and contractsBusiness and contract disputes in enterprisesFor columns involving special handling, you can consult us for further assistanceSpecial servicesTeam.

VI. Frequently Asked Questions

Q1: Can the employer dismiss an employee during the period of suspension of work with pay?

In principle, employees cannot be dismissed at will. This period is a special protection period, and the employer is not allowed to terminate the employment contract on the grounds of medical leave or job vacancies.

Q2: Under what circumstances can the unit terminate the employment contract?

If the worker commits serious violations of discipline, serious dereliction of duty, or is subject to criminal prosecution under statutory circumstances, the employer may terminate the employment contract in accordance with the law, but the employer shall bear the burden of proof.

Q3: What can I claim if I'm dismissed illegally?

You can demand that the contract be continued to be performed, or claim compensation for unlawful termination, which is usually twice the standard of economic compensation.

Q4: What should I do if the contract expires during the salary retention period?

Generally, the contract should be extended until the corresponding circumstances disappear. The employer cannot terminate the employment relationship by citing the expiration of the contract.

Q5: What should I do if my employer says I'm considered absent without leave?

Submit the work-related injury identification certificate, the diagnosis certificate, and the leave record to prove that you did not skip work, and apply for labor arbitration in a timely manner.

This article is written based on the common judicial interpretation in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence to avoid missing the statutory time limit.Labor arbitration legal services·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.