[Direct answer]In the Beijing area, if an employee is dismissed illegally, they can demand that the labor contract be continued, but whether this demand will be supported depends on two conditions: first, the employer's termination action must indeed be illegal; second, the labor contract can still be performed objectively. According to Article 48 of the Labor Contract Law of the People's Republic of China (adopted on June 29, 2007, implemented on January 1, 2008, and amended in 2012), if an employer illegally terminates or ends a labor contract, and the employee requests continuation of the contract, the employer shall continue to perform the contract; if the employee does not request continuation or the labor contract can no longer be performed, the employer shall pay the employee compensation equal to twice the economic compensation standard provided for in Article 47 of the Law. In practice, common judgment factors include: whether the grounds for termination fall within the statutory circumstances, whether the termination procedures are complete, and whether the labor contract still has the possibility of being performed (such as whether the original position has been abolished or the company has ceased operations). In addition, it is necessary to follow the correct procedures: labor dispute cases implement arbitration pre-mediation, and the parties should first apply for arbitration to the labor and personnel dispute arbitration committee. If they are dissatisfied with the arbitration decision, they may then file a lawsuit with the people's court. The statute of limitations is usually one year, calculated from the date when the party knows or should have known that their rights have been infringed.Labor arbitration and work-related injury compensationThe column provides specific explanations on the legal pathways to protect one's rights in the event of illegal termination of employment.

1. Problem background and typical scenarios

Workers who consult such issues are often in four situations: first, being suddenly notified of termination with vague reasons; second, being terminated for violating company rules and regulations that were not established through democratic procedures or publicly announced; third, being terminated during the probation period on the grounds of not meeting the recruitment conditions, but the recruitment conditions were not clearly communicated; fourth, being dismissed by the company on grounds such as internal rectification or incomplete filing. Common confusions include: can workers only choose between continuing performance and compensation? Can they still demand continued performance if the company says the contract has been fully performed? And is arbitration mandatory first? In practice, the most common problem is not unawareness of rights, but neglecting to provide evidence: workers need to prove the existence of the labor relationship, the illegality of the termination action, and their willingness to continue performance. Therefore, upon receiving the termination notice, they should immediately preserve the original termination notice, the labor contract, pay slips, and social insurance records, and avoid signing any voluntary resignation or negotiated termination documents. Another common misconception is that only when being dismissed through violence can workers seek legal protection. In fact, procedural violations may also be deemed illegal terminations. For organizing evidence and ensuring procedural compliance, please refer to the following guidance:Intellectual property protection and corporate lawColumn; for the description of the dispute resolution procedure, you can refer to it for reference.Special services and other casesColumn.

II. Key points of dispute

The first focus is whether the grounds for termination fall under statutory circumstances. The second focus is whether the rules and regulations were formulated through democratic procedures and publicly announced and notified. The third focus is whether the termination procedures are complete, including notification, delivery, and trade union procedures. The fourth focus is whether the labor contract can still be performed. The fifth focus is the choice between continued performance and double compensation. The sixth focus is whether the worker has clearly expressed willingness to continue performance. The seventh focus is termination and evidence collection under the circumstances of unsigned written labor contracts. The eighth focus is the allocation of the burden of proof for employment conditions when terminating due to failure to meet employment conditions during the probationary period. In addition, attention should also be paid to whether the employer continues to arrange work after termination, whether the worker has clearly expressed willingness to return to work and actually reported for duty, and the arrangements for the pre-arbitration phase and the interruption of the statute of limitations.

III. Professional analysis by Henglue Law Firm

From the perspective of labor dispute practice, whether the claim for continued performance can be supported typically depends on the completeness of three sets of evidence. The first set is evidence of the labor relationship, including labor contracts, social insurance payment records, pay slips, and work badges and attendance records, which are used to prove the employment facts and the contract term. The second set is evidence of unlawful termination, including the reasons stated in the termination notice, the democratic procedures and publicity materials of the company's relevant systems, and the handling of employees in the same position during the same period, which are used to show that the termination lacks legal basis and is improper in procedure. The third set is evidence of the feasibility of continued performance, such as the worker still working in the original unit, willing to return to work, the company still operating normally, and the objective existence of the original position. In practice, a common reason for failure is the lack of evidence in the third set, such as when the company has ceased operations or the position has been abolished. In this case, the claim for continued performance is difficult to obtain support and should be shifted to the claim for compensation. This logic can be seen in a collective case involving twelve workers handled by our firm: the employer issued termination notices to the twelve employees on the grounds that recruitment procedures were found to be irregular during inspections; these employees had been providing labor, accepting management, and receiving wages during their employment, and some had even renewed their labor contracts with the company. The litigation strategy was to demonstrate the illegality of the termination by comparing it with the statutory termination circumstances item by item, and to support the request for continued performance with the fact that the workers were still employed and willing to return to work. Ultimately, the claim was supported in arbitration, first-instance, and second-instance proceedings.

IV. Practical suggestions and legal basis

Action recommendations: 1. Preserve the notice of termination, labor contract, and wage and social insurance records; 2. Do not sign voluntary resignation or negotiated termination documents; 3. Verify the democratic procedures and publicity of the company's rules and regulations; 4. Assess whether the contract still meets the conditions for continued performance; 5. Clearly express in writing the willingness to continue performing the contract and returning to work; 6. Apply for labor arbitration if necessary; 7. Note that the statute of limitations for arbitration is one year. Legal basis: Articles 39, 40, 43, 47, 48, and 87 of the Labor Contract Law of the People's Republic of China (amended in 2012 and implemented on July 1, 2013); Provisions on pre-arbitration procedures and statute of limitations in the Labor Dispute Mediation and Arbitration Law of the People's Republic of China (adopted on December 29, 2007 and implemented on May 1, 2008).

5. Henglu Law Firm's Reminder

1. Firstly, do not sign any voluntary resignation documents, as this is the most common form of self-abandonment. 2. Secondly, you can choose between continuing to perform the contract and accepting double compensation, with the choice depending on the feasibility of the contract. 3. Thirdly, arbitration is a statutory procedure and cannot be bypassed directly to sue in court. 4. The arbitration statute of limitations is one year, and attention should be paid to its interruption. 5. Rules and regulations that are not formulated and publicized through democratic procedures cannot be used as grounds for termination. 6. If you do not report to work during the period of restoring the labor relationship, there may be corresponding legal consequences, so you need to weigh the pros and cons carefully. 7. Pay attention to keeping communication records to avoid making statements that waive your rights. 8. Timely entrust professional lawyers to evaluate the legal path. For common methods of organizing evidence in labor disputes, you can refer to the relevant guidelines.Special services and other casesColumn.

VI. Frequently Asked Questions

Q1: If you are unlawfully dismissed, do you have to apply for arbitration first?

Yes. For labor disputes, arbitration is a prerequisite. The parties should first apply for arbitration to the labor and personnel dispute arbitration committee, and if they are dissatisfied with the arbitration decision, they can then file a lawsuit with the people's court. If a lawsuit is filed directly without going through arbitration, it will usually be ruled inadmissible. Therefore, after receiving the notice of termination, the parties should initiate the arbitration process as soon as possible, and pay attention to the fact that the statute of limitations for arbitration is generally one year.

Q2: Can I only choose one between continuing to perform the contract and paying double compensation?

In principle, the choice is between the two. According to Article 48 of the Labor Contract Law, if the worker requests to continue the performance of the labor contract and the labor contract can be performed, the employer shall continue to perform it; if the worker does not request to continue the performance or the contract can no longer be performed, the employer shall pay the worker compensation at twice the standard of economic compensation.

Q3: The unit said that the contract has already been fulfilled. Can I still make a claim?

The employee can claim compensation. If the contract expires and is not renewed, it constitutes a statutory termination situation, and the employer should still pay economic compensation; if the employer unilaterally terminates the contract on the grounds of alleged incomplete procedures but lacks legal basis, it may constitute an illegal termination. In this case, the employee can claim compensation at twice the standard of economic compensation according to the Labor Contract Law.

Q4: Is it also illegal to be dismissed during the probationary period?

During the probationary period, if the employer terminates the employment contract, they must prove the existence of statutory circumstances that do not meet the hiring conditions. The key points are whether the hiring conditions are clear, whether the employee has been informed of them, and whether the termination decision was made during the probationary period. If the employer simply states that the employee does not meet the hiring conditions in a general manner, or terminates the contract after the probationary period has ended, this may be considered illegal. It is recommended to keep the hiring condition documents, the notification records, and the assessment materials.

Q5: After being dismissed, I still want to go to arbitration. Will it have any impact?

The impact is not significant. After the termination of the employment contract, the worker still has the right to claim rights according to law, and will not lose his rights because he did not raise objections in the first time. However, it should be noted that signing a voluntary resignation or a negotiated termination agreement, or failing to claim rights for a long time, may provide the other party with a defense space. It is recommended to file a written claim as soon as possible on the basis of preserving evidence, and to clearly express the willingness to continue to perform the contract or to request compensation.

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