[Direct answer]When legally laying off employees, companies must strictly follow the procedures for economic layoffs stipulated in Article 41 of the Labor Contract Law, or terminate the contract through consultation according to Article 36, or dismiss employees for misconduct according to Article 39. Dismissing employees solely for attendance violations requires proof of a democratic and publicized system, the facts of the attendance violations, and the obligation to notify the employees. Otherwise, it constitutes an illegal termination and the company must pay compensation (2N). Key figures: The compensation for an illegal termination is twice the economic compensation, and the economic compensation is calculated based on one month's salary per year of service. It is recommended that enterprises refer to this for reference.Labor arbitration legal services, ContactAttorney Tian JiayanAndBeijing Henglu Law FirmFollow standard operating procedures.

I. Legal basis and interpretation of provisions

1. Article 41 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012)

Economic layoffs must comply with legal requirements. Thirty days in advance, the company must explain the situation to the trade union or all employees, listen to their opinions, and report the plan to the labor administrative department. If the company arbitrarily dismisses a large number of employees in the name of "optimization" without following this procedure, it may be deemed an illegal termination, and the company will have to bear the consequences of compensation, and it is also likely to trigger mass disputes.

2. Articles 39 and 43 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012)

The dismissal due to negligence requires proof of a serious violation of the rules and regulations, and the system must have undergone a democratic process and been publicly announced; Article 43 requires that the employer notify the trade union in advance before unilaterally terminating the employment contract. If the employer relies solely on indirect evidence such as gate records to determine a serious violation of disciplinary rules and fails to fulfill its obligation to provide warnings, the dismissal lacks legal basis and is likely to be deemed illegal. The employer must rectify the procedural defects.

3. The interpretation of the case by the judge in practice

The court strictly reviews the dismissal for disciplinary violations: the attendance basis must be the company's explicitly stated standards, and the gate records cannot be equated with attendance; the employer bears the burden of proof for the facts of disciplinary violations and the basis of the system. The most common pitfall for enterprises is to dismiss employees directly based on unilateral records, without leaving any trace of management warnings, ultimately leading to high compensation payments and damage to their reputation.

II. Henglue Lawyer's Real Case (Detailed Review)

Review of the case:Li * joined a software company on April 24, 2014, and was employed as a development engineer. He signed a labor contract, with a monthly salary consisting of a base salary of 5,000 yuan, a position-based salary of 8,400 yuan, and a performance-based salary of 3,400 yuan. His average monthly salary during the 12 months prior to his departure was 17,314.42 yuan. He last worked until September 9, 2025. On that day, Company A dismissed him by sending a notice of termination of the labor contract, citing his multiple tardiness violations and serious violations of the attendance management system. Li * did not agree with the termination and entrusted Beijing Henglu Law Firm to handle the case for him.Tian Jia YanThe lawyer applied for labor arbitration, claiming compensation for the illegal termination of the contract amounting to 398,231.66 yuan and demanding the issuance of a severance certificate.

The focus of the controversy:First, whether the gate access records can be equated with attendance records to prove serious violations of discipline; Second, the legality of the employer's unilateral termination and the burden of proof.

Our position and the position of the other party are as follows:Li * claimed that the company's termination of his employment was unlawful as it lacked factual basis, and requested the company to pay compensation and issue a severance certificate. Company A argued that the termination was lawful based on the labor contract and the employee handbook, citing 57 instances of late arrivals and early departures over a three-month period as evidence, and provided gate access records to support its claim.

Attorney's Strategy and Legal Opinion:Attorney Tian Jiaoyan submitted an email of the company's attendance notice, proving that the actual attendance records were from WeCom rather than the gatekeeper's records, which were controlled by the company and not confirmed by Li *. The authenticity of these records is questionable. Additionally, the company failed to fulfill its duty of giving prudent reminders and warnings to Li * regarding his 57 instances of being late or leaving early. The company's decision to terminate the employment contract lacks factual and legal basis, and should be deemed an illegal termination.

The court's reasoning and the outcome of the case:The arbitration committee determined that the attendance rules did not explicitly stipulate that the gate records should be used as the standard for attendance, that the gate records lacked Li's confirmation and had questionable authenticity, and that the company failed to provide evidence to fulfill its obligation to provide warnings. Therefore, the arbitration committee did not accept the facts of the serious disciplinary violations. In accordance with Articles 48 and 87 of the Labor Contract Law, combined with Li's 11.5 years of work experience and an average monthly salary of 17,314.42 yuan, the arbitration committee ruled that the company should pay compensation of 398,231.66 yuan (17,314.42 yuan multiplied by 11.5 months) and issued a termination certificate.

This case is handled by Beijing Henglu Law FirmTian JiayanThe attorney (practice certificate number: 11101202111381309, subject to the certificate issued by the judicial administrative organ) acts as the agent.

III. Frequently Asked Questions

Q1: What are the procedures for a company to carry out economic layoffs?

According to Article 41 of the Labor Contract Law, the employer must comply with the statutory requirements, notify and listen to the opinions of the trade union or employees 30 days in advance, and report the layoff plan to the labor administrative department. If the employer terminates the contract without following this procedure, the termination may be deemed illegal and the employer may be required to pay compensation. Failure to follow the procedure constitutes a violation of the law.

Q2: Is it legal to dismiss an employee for being late?

It is necessary to prove that the system has been subject to democratic public disclosure, that the fact of being late is clear and constitutes a serious violation of discipline, and that the employer has fulfilled its obligation to provide warnings. If the evidence is indirect, such as gate records, and there are no management traces, the employer may be found guilty of violating the law and be required to pay double compensation. If the evidence is insufficient, the employer will lose the case.

Q3: How is the compensation for illegal termination calculated?

Pay twice the standard economic compensation. The economic compensation is calculated based on one month's salary per year of service. For those with more than six months but less than one year of service, it is calculated as one year's salary; for those with less than six months of service, it is calculated as half a month's salary. The monthly salary is the average salary of the last twelve months before the termination, reflecting the "2N" rule, where the longer the work experience and the higher the salary, the more compensation they will receive.

Q4: Is it necessary to provide economic compensation for layoffs?

For a negotiated termination and an economic layoff, the employer should pay economic compensation; for a wrongful dismissal, no compensation is required, but the employer must have legal grounds and evidence. If the employer confuses the nature of the termination and fails to provide evidence, it may be deemed an unlawful termination and subject to higher compensation. It is essential to clarify the applicable circumstances.

Q5: Is it valid to dismiss an employee without notifying the trade union beforehand?

According to Article 43 of the Labor Contract Law, the employer shall notify the trade union in advance if it intends to unilaterally terminate the labor contract. Failure to do so constitutes a procedural violation, and the employee may claim that the termination is illegal. Even if the employer's substantive grounds are valid, procedural defects may lead to the termination being revoked and compensation being required. The employer should therefore rectify the trade union-related procedures.

IV. Suggestions for Protecting Rights

  • When laying off employees, the company shall prioritize consultation-based termination or economic layoff procedures, and retain explanations, listen to opinions, and keep records of the process.
  • The dismissal for disciplinary violations must be subject to democratic public announcement, with clear facts and full disclosure of management obligations, in order to avoid relying solely on unilateral records.
  • Before terminating the employment contract, the employer shall notify the trade union in accordance with the law, rectify any procedural flaws, and reduce the risk of being deemed to have unlawfully terminated the contract.
  • The economic compensation and compensation payments shall be calculated based on the average monthly salary of the employee in the 12 months prior to his/her departure, which shall serve as the standard for determining the calculation base.
  • \nFor group layoffs, it is advisable to entrust a lawyer to review the plan in advance to avoid consecutive illegal dismissal compensation cases.

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 limits. →Labor arbitration legal services·Attorney Tian Jiaoyan·Beijing Henglu Law Firm