[Direct answer]In the Beijing area, after the illegal termination of a labor contract, workers can either request to continue performing the labor contract (reinstating the employment relationship) or demand compensation for the illegal termination, but they can only choose one of the two. According to Article 48 of the Labor Contract Law of the People's Republic of China, if the employer illegally terminates the contract and the worker requests to continue performing the contract, the employer shall continue to perform the contract; if the worker does not request to continue performing the contract or the contract can no longer be performed, the employer shall pay compensation at twice the standard of economic compensation according to Article 87. The economic compensation shall be one month's salary for each year of service, and six months or more but less than one year shall be counted as one year. Less than six months shall be paid half a month's salary. It is recommended to apply for arbitration as soon as possible and specify the choice in the request to avoid conflicting claims. For more details, please refer to the following link:Labor arbitration and work-related injury compensation services.

I. Problem Background and Typical Scenarios

Many workers face sudden dismissal by their companies, and their first reaction is often "Can I go back to work?" Typical scenarios include: the company unilaterally dismissing workers for alleged underperformance, but failing to follow legal procedures; female employees being dismissed during their pregnancy for trumped-up reasons; injured workers being notified to terminate their contracts during their medical leave; and probationary employees being arbitrarily deemed unqualified for employment. Whether these situations constitute illegal dismissal directly determines whether workers can demand to return to work or only receive compensation. For disputes involving work-related injury benefits, relevant provisions can be referenced.Personal injury and medical dispute servicesEvaluate them together.

II. Key points of contention

The focus of the dispute lies in three aspects. Firstly, whether the dismissal is legal: whether the employer has the statutory grounds for dismissal, and whether they have fulfilled the procedures of notifying the trade union and providing evidence, are the key factors in determining whether it is illegal. Secondly, whether the employee can continue to perform their duties: even if the dismissal is illegal, if the position has been replaced by someone else, or if the trust between the parties has completely broken down, the court may award compensation instead of forcing the employee to return to work. Thirdly, protection for special groups: female employees during pregnancy, childbirth, and lactation, as well as workers who have suffered work-related injuries, are generally not subject to non-fault dismissal during the statutory protection period. When handling similar cases in Beijing, the review of the employer's dismissal procedures is relatively strict, and the burden of proof is often borne by the employer. For cases involving enforcement after the ruling, reference can be made to the relevant provisions.Creditor-debtor relations and enforcement case services.

III. Professional analysis by Hengluo Lawyers

Based on practical experience in handling labor dispute cases, the key to whether or not to restore the labor relationship lies in whether "continued performance is feasible". According to Article 48 of the Labor Contract Law, if the worker claims to continue the performance, the arbitration and the court shall generally support it. However, in judicial practice, the determination of "the labor contract can no longer be performed" tends to be broadened. For example, the abolition of the original position, the adjustment of the company's structure, and the intensification of conflicts between the two parties may all become reasons for not supporting continued performance. Hengluo Lawyers usually suggest: while claiming to continue the performance, the worker should also request compensation for illegal termination, so as to avoid missing the compensation if the court does not support continued performance due to the lack of claims. For special protected groups such as pregnant women and workers injured at work, the employer will almost inevitably bear adverse consequences if it illegally terminates the contract. For cases involving complex employment relationships, legal assistance can be sought.Special services and other case servicesCoordinate and plan things in an organized and efficient way to achieve the best results with the least effort.

IV. Practical Suggestions and Legal Basis

The core basis is Article 48 (Consequences of Unlawful Termination), Article 87 (Standard of Compensation), and Article 47 (Calculation of Economic Compensation) of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012, and implemented on July 1, 2013), as well as the provisions on arbitration statutes and procedures in the Labor Dispute Mediation and Arbitration Law of the People's Republic of China. Practical suggestions: Immediately collect the labor contract, payroll records, termination notices, and communication records after being dismissed; specify "continued performance" or "compensation" in the arbitration request and reserve the right to claim; note that the one-year arbitration statute of limitations begins from the date when the right holder becomes aware of the infringement; and evaluate the feasibility of continued performance in advance. For employment contract reviews, relevant provisions can be referenced.Business and contract dispute resolution services for enterprises.

5. Hengluo Law Firm's Reminder

Restoring the labor relationship is not as simple as "just wanting to return and being able to do so". The court will comprehensively consider the current status of the position and the trust between the two parties when making a judgment. It is recommended that workers not hastily agree to severance compensation after being illegally dismissed. They should first assess the possibility of continuing the performance of the contract and the amount of compensation, and choose the more favorable option. Remember that the statute of limitations for arbitration is one year, and delaying it may result in the loss of remedies. If the employer claims a fault-based dismissal, the employer must bear the burden of proof, and the worker should urge the employer to present evidence. If professional representation is needed, you can contactBeijing Henglu Law FirmMake an appointment for an assessment.

VI. Frequently Asked Questions

Q1: After the illegal termination, if I insist on going back to work, will the arbitration support me?

The support or not depends on whether it is feasible to continue the performance of the contract. According to Article 48 of the Labor Contract Law, if you claim to continue the performance of the contract, the arbitration and the court should generally support it; but if the original position has been abolished, replaced by others, or the trust between the two parties has been broken due to conflicts, it may be deemed that the contract cannot be continued. In this case, you can only get compensation. In practice, it is recommended that you request to continue the performance of the contract first, and then prepare for requesting compensation, so as to avoid being disappointed.

Q2: If I want to claim the restoration of the labor relationship or compensation, what evidence do I need to prepare?

The core evidence includes: labor contracts and employment materials (to prove the employment relationship), bank transaction records of wages and social insurance records (to prove the wage standard and working years), termination notices issued by the employer or chat records of dismissal (to prove the fact of termination), and if claiming special protection, it is necessary to provide materials such as pregnancy checkup or work-related injury identification. If it can be proven that the employer's reason for termination is unfounded, the probability of winning the lawsuit will be significantly increased, so it is necessary to keep all communication records.

Q3: How much does it cost to hire a lawyer to fight against an illegal termination lawsuit?

At the labor arbitration stage, there is no case acceptance fee charged; attorney fees are negotiated between the law firm and the client, usually charged on a per-case basis or as a percentage of the litigation amount, with the specific fees subject to the contract between the client and the lawyer. There is no nationwide standard pricing. For cases involving compensation calculation, the litigation amount shall be used as the reference. It is recommended to first understand the fee details and whether they include subsequent litigation before deciding whether to hire a lawyer, to avoid unclear fee expectations.

Q4: How long does it usually take from applying for arbitration to obtaining the result in a case of illegal termination of employment?

Labor arbitration cases are generally concluded within 45 days from the date of acceptance, and the time limit may be extended by 15 days if the case is complex. For cases where the parties appeal against the arbitration award, the first-instance ordinary procedure shall be completed within six months and the summary procedure within three months. If the claim for continued performance is supported, the employer must actually arrange for the employee to return to work; if the judgment orders compensation, the employer who refuses to pay must apply for compulsory enforcement, and the overall process often takes several months to a year. It is recommended to initiate the process as soon as possible to shorten the timeframe.

Q5: I was suddenly dismissed. What should I do first?

Here's the translation of the Chinese text into English: Suggested four steps: First, immediately take photos to preserve evidence after receiving the termination notice, and request the employer to provide a written explanation of the termination reason. Second, organize core evidence such as labor contracts, pay slips, social insurance records, and communication records. Third, file a labor arbitration claim within the one-year arbitration statute of limitations, specifying in the request either continued performance of the contract or compensation with a backup claim. Fourth, if necessary, hire a professional lawyer to assist with evidence collection and court hearings. Never sign a resignation agreement to waive your rights lightly.

The above answer is based on the judicial practice in Beijing. The adjudication standards in other provinces and cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the 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. In case of disputes, please consult a practicing lawyer in time.