[Direct answer]In the Beijing area, dismissal can be implemented under certain conditions, but not "direct dismissal". After the expiration of the medical leave period, if the employee is unable to perform their original job or the work arranged by the employer, the employer may terminate the labor contract, but must fulfill three obligations: notify the employee in writing 30 days in advance or pay an additional one-month salary as a notice payment; pay economic compensation (one month's salary for each year of service, one month's salary for six months or more but less than one year, and half a month's salary for less than six months); and notify the trade union of the reasons in advance. If the employer neither arranges alternative work nor fulfills the obligations of notification and compensation, and directly dismisses the employee for "incompetence", this constitutes an illegal termination, and the employee may claim continued performance of the contract or compensation. This is in accordance with Articles 40, 46, and 47 of the Labor Contract Law of the People's Republic of China.

1. Problem background and typical scenarios

When a worker returns to work after the end of their medical leave but their physical condition has not yet recovered to the point where they can perform their original duties, the employer often cites reasons such as "their physical condition has deteriorated" or "the position cannot remain vacant for long" to terminate the employment contract. The key to determining whether the termination is legal or illegal lies in whether the employer has completed the statutory procedures. Such disputes account for a significant proportion of labor disputes in the Beijing area, and procedural flaws often directly determine the outcome of the case.

II. Key points of contention

First, whether the statutory prerequisites for termination are met. Second, whether the procedures for job transfer and notification have been carried out. Third, the calculation of economic compensation and severance pay. Fourth, the consequences of unlawful termination.

III. Professional analysis by Henglue Lawyers

The first layer, statutory prerequisites: The law limits the termination after the expiration of the medical period to the situation where the employee "cannot perform their original job or any other arranged job". Both of these conditions are indispensable. The employer must first prove that the employee is unqualified for their original position, and then arrange suitable work for them. Only when the employee is also unqualified for the new position does the termination condition come into effect. The second layer, procedural obligations: Even if the conditions are met, the employer must give written notice 30 days in advance or pay an additional month's salary, and notify the trade union of the termination reasons in advance. In practice, many cases are deemed illegal terminations due to the lack of written notice, severance pay, or trade union procedures. The third layer, compensation calculation: Economic compensation is calculated based on the employee's years of service in the company. For each completed year, one month's salary is paid; for more than six months but less than one year, one year's salary is calculated; and for less than six months, half a month's salary is paid. The monthly salary is based on the average monthly salary of the previous 12 months. If it exceeds three times the average monthly salary of local workers, the compensation is capped at three times the average salary, with a maximum term of 12 years. The fourth layer, evidence and strategies: If the employee claims that the termination is illegal, they should keep the diagnosis certificate, discharge records, communication records about returning to work, and the employer's termination notice. If the employer claims that the termination is legal, they must provide evidence of the job transfer, the notification process, and the trade union procedures. Related disputes can be resolved through legal channels.Labor arbitration and work-related injury compensationOverall handling of the service.

IV. Practical suggestions and legal basis

First, verify whether the medical leave period has indeed expired and whether the employer has undercounted it. Second, after receiving the notice to return to work, truthfully state your physical condition and keep a record of the communication. Third, if the employer proposes to terminate the employment contract, require them to issue a written notice and explain the reasons. Fourth, compare the termination with the statutory conditions to determine whether it is legal. If there are procedural omissions, you can claim that the termination is unlawful. Fifth, file a labor arbitration claim within the statutory time limit, and simultaneously claim compensation, notice pay, unpaid wages, and annual leave pay. Main legal basis: Articles 40, 42, 46, 47, 48, and 87 of the Labor Contract Law of the People's Republic of China; the "Regulations on the Medical Leave Period for Enterprise Employees Suffering from Illness or Non-work-related Injuries" (Labor Ministry Notice [1994] No. 479); the specific application shall be subject to the currently effective provisions.

5. Henglu Law Firm's Advice

There are three key points to understand when terminating an employee's medical leave: First, it is necessary to prove that the employee is unable to perform their original job and cannot engage in alternative work arrangements. Second, the employer must notify the employee 30 days in advance or pay a notice fee, and pay economic compensation and notify the trade union. Third, any procedural omissions constitute an illegal termination, and the employee can claim double compensation. For cases involving labor arbitration and work-related injury compensation, legal assistance can be sought through relevant channels.Labor arbitration and work-related injury compensationThe service obtains a comprehensive solution that can integrate personal injury and appraisalPersonal injury and medical disputesFor more information on compliance with employment regulations in enterprises, you can refer to the following sectionBusiness and contract disputes in enterprisesFor any questions regarding difficult cases, please feel free to consult us.Special servicesTeam.

VI. Frequently Asked Questions

Q1: If an employee is not competent after the expiration of the medical leave, can the employer directly dismiss them?

It's not possible to dismiss an employee directly. First, it's necessary to prove that the employee is unable to perform their original job and cannot engage in any other arranged work. Then, the employer must notify the employee 30 days in advance or pay compensation in lieu of notice, and pay economic compensation to the employee.

Q2: What procedures does the unit need to go through?

The written notice, the additional payment of one month's salary, the payment of economic compensation, and the notification of the reasons for the termination to the trade union in advance are all essential. The omission of any one of these may constitute an illegal termination.

Q3: How much compensation can I get?

For each year of service in this unit, one month's salary shall be paid. For a service period of more than six months but less than one year, it shall be calculated as one year; for a service period of less than six months, half a month's salary shall be paid. In the case of severance pay, it shall be calculated separately.

Q4: What can I claim if I'm dismissed illegally?

The employee may request to continue performing the labor contract; if the employee does not request to continue performing the contract or is unable to perform it, the employee may claim compensation at twice the standard of economic compensation.

Q5: What evidence do I need to prepare for the arbitration?

Diagnostic certificates, discharge records, communication records regarding returning to work and job transfer, termination notices, payroll records, and social insurance records, which are used to prove that the calculation of the date of termination and the illegality of the termination process.

This article is written based on the common judicial interpretations 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 currently 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.