[Direct answer]In the Beijing area, if an employer unilaterally terminates a labor contract without notifying the trade union of the reasons or seeking its opinion in advance, this constitutes a procedural violation, and the worker may claim compensation for unlawful termination. According to Article 43 of the Labor Contract Law of the People's Republic of China, the employer shall notify the trade union in advance before unilaterally terminating the contract. The relevant judicial interpretations of the Supreme Court specify that if the employer terminates the contract without notifying the trade union, the worker's claim for unlawful termination shall be supported by the court, except where the employer rectifies the procedure of notifying the trade union before suing. The key time point is whether the procedure can be rectified "before suing". It is recommended to keep the termination notice and file for arbitration as soon as possible. For more details, please refer to the following link:Labor arbitration and work-related injury compensation services.

1. Problem background and typical scenarios

Many companies only go through the human resources approval process when dismissing employees, completely bypassing the trade union, believing that as long as the reasons are sufficient, it will be effective. Typical scenarios include: small and micro enterprises that have not established a trade union directly dismissing employees; although there is a trade union, no notification procedures are carried out; group-type enterprises make decisions by the headquarters, and the grassroots trade unions are not aware of it; and the unit only thinks of obtaining a trade union opinion after the arbitration. These situations all involve the statutory procedure of "notifying the trade union", which directly affects the effectiveness of the dismissal. For those involving the employment of related enterprises, it can be combined with the relevant provisions of the Labor Law.Business and contract dispute services for enterprisesAnalysis.

II. Key points of contention

The focus of the controversy lies in three aspects. Firstly, whether the failure to establish a trade union exempts the employer from liability: Some argue that there is no need to notify the trade union in this case, but judicial practice tends to require employers to carry out democratic procedures through alternative means such as higher-level trade unions or employee representatives. Secondly, the remedial period: The judicial interpretation allows employers to rectify the process of notifying the trade union "before suing", and such rectification does not necessarily constitute a violation of the law. Thirdly, the burden of proof: Employers must prove that they have fulfilled their obligation to notify the trade union, otherwise they will bear adverse consequences. In the judicial practice of Beijing, the review of trade union procedures has become stricter, and employers often lose the case due to insufficient evidence. For cases involving the enforcement of rulings, 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, terminating a labor contract without notifying the trade union carries extremely high risks in the current adjudication environment. According to Article 43 of the Labor Contract Law and Article 47 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Labor Disputes Cases (I), if an employer terminates a labor contract without notifying the trade union, the employee's claim for unlawful termination shall be supported, unless the employer completes the notification procedure before the litigation. Hengluo Law Firm advises: The notification must be genuine and completed before the litigation. Notifications made after the arbitration stage are usually not considered valid notifications; and the notification cannot replace the legality of the substantive grounds. For employers who plan to terminate an employee's contract, the law firm recommends that they first complete the trade union procedures before issuing the notice. For special compliance issues, legal assistance can be sought.Special services and other case services.

IV. Practical suggestions and legal basis

The core basis is Article 43 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012), which stipulates that the employer must notify the trade union when terminating the labor contract, and Article 47 of the Interpretation of the Supreme People's Court on the Application of Law in the Trials of Labor Disputes (I), which came into effect on January 1, 2021, which stipulates that the employer may correct the omission of notifying the trade union before suing. Practical suggestions: After receiving the notice of termination, the employee should first verify whether the employer has completed the trade union procedures and may focus on attacking the procedural defects in the arbitration; the employer should establish a mechanism for leaving records of notifying the trade union before terminating the contract. For procedural disputes, the parties may refer to the relevant provisions of the Labor Contract Law and the Interpretation of the Supreme People's Court on the Application of Law in the Trials of Labor Disputes (I) to resolve the disputes.Beijing Hengluo Law FirmThe provided specialized assessment.

5. Henglu Law Firm's Reminder

For workers, procedural flaws in trade union procedures are a powerful argument to claim unlawful dismissal, but attention should be paid to the exception of rectification - if the unit completes the procedures before suing, the procedural flaws may be remedied. It is recommended not to rely solely on procedural issues, but also to review whether the substantive reasons for the dismissal are valid. This dual approach should be adopted. The arbitration statute of limitations is still one year, and if it is found that the trade union has not been notified, the claim should be raised as soon as possible. For the unit, fulfilling the obligation to notify the trade union is both a legal obligation and a risk prevention measure. If you need representation, you can refer to the relevant provisions.Labor arbitration and work-related injury compensation servicesThe special support from the government.

VI. Frequently Asked Questions

Q1: If the employer terminates an employee without notifying the trade union, is the termination necessarily invalid?

It's not necessarily absolutely ineffective, but the risk of procedural violations is extremely high. According to Article 43 of the Labor Contract Law and judicial interpretations, if an employer terminates the contract without notifying the trade union, the court shall support the worker's claim that the termination is illegal; the only exception is that the employer rectifies the procedure of notifying the trade union "before suing". Therefore, if the employer rectifies the procedure only at the arbitration stage, it is usually not curable, and you are still likely to claim compensation. The key point is the time point of rectification.

Q2: I need to prove that the company didn't notify the trade union. What kind of evidence do I need to provide?

You don't need to directly prove the "lack of notification", but the employer should provide evidence to demonstrate that they have fulfilled their notification obligation. You can collect the following evidence: the original notice of termination, chat records or emails related to the dismissal (to see if the trade union is mentioned), clues about the establishment of the employer's trade union, and witness statements from colleagues. If the employer fails to present the trade union's receipt or opinion letter regarding the notification during the arbitration process, the procedural defect will be established. It is recommended to simultaneously challenge the employer's substantive grounds and pursue legal action on two fronts.

Q3: Is it expensive to hire a lawyer to handle such illegal cases involving these programs?

Labor arbitration does not charge case acceptance fees; attorneys' fees are negotiated between the law firm and the client and are calculated on a per-case or percentage-of-the-case-value basis, with the specific fees subject to the terms of the engagement contract. There is no nationwide standard pricing. Due to the calculation of compensation, the case value is based on the compensation that should be received. It is recommended to first clarify whether the fees include first-instance litigation before deciding whether to hire a lawyer, to avoid unclear subsequent fees.

Q4: How long does it typically take from arbitration to a ruling on unlawful termination?

The arbitration case shall be concluded within 45 days from the date of acceptance, and the time limit may be extended by 15 days in complex cases. For the first-instance ordinary procedure of a lawsuit against the arbitration award, the time limit is six months, and for the summary procedure, it is three months. If the unit corrects the trade union procedures before the lawsuit, it may affect the outcome of the arbitration, and the court needs to verify this. Generally, it usually takes several months to a year from the filing of the case to its effectiveness. It is recommended to apply for arbitration as soon as possible to take advantage of the one-year arbitration statute of limitations and avoid procedural stagnation.

Q5: If I find that my employer hasn't followed the trade union procedures, what should I do first?

There are four steps to follow: First, immediately keep the notice of termination and all communication records, and confirm whether there are any statements from the trade union; Second, verify with the employer or the trade union whether there is indeed a notice, and establish the fact that the employer "did not notify" or maintained silence; Third, apply for arbitration within the one-year statute of limitations, and claim both procedural defects and substantive grounds; Fourth, if necessary, hire a lawyer to retrieve the employer's trade union information and organize supplementary evidence.

The above content is based on the judicial practice in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm for specific situations.

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 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.