[Direct answer]Yes, but three conditions must be met simultaneously: institutional basis—the rules and regulations are formulated through democratic procedures and have been announced and notified to employees (Article 4 of the Labor Contract Law); factual basis—the evidence of the disciplinary violation is sufficient and of a serious nature (Article 39); and procedural compliance—the employer must notify the trade union of the reasons before terminating the contract (Article 43). If a dispute arises over the termination decision, the employer shall bear the burden of proof (Article 44 of the Interpretation of the Labor Contract Law [2020 No. 26]), and any flaw in any of the above steps may constitute an illegal termination, requiring the payment of double compensation (Article 87). For employment compliance solutions, please consult us for further advice.Labor arbitration and legal services for work-related injury compensationAndBeijing Henglu Law Firm.

I. Problem Background and Typical Scenarios

The most rigid and easily backfiring disciplinary measure in enterprise employment management is dismissal for serious violations of discipline. Typical scenarios include: employees absenteeism for several days, and the company directly issues a dismissal notice without being able to provide evidence that the rules and regulations have been publicly announced; employees leaking client information or making inappropriate remarks in public, and the company dismisses them on the grounds of violating professional ethics, but there are no corresponding provisions in the system; probationary employees violate discipline, and the company dismisses them on the grounds of not meeting the employment conditions without keeping assessment records; employees sign the rules and regulations, but the company cannot prove that they were formulated through democratic procedures. Once it is determined that the dismissal is illegal, the company needs to pay compensation at twice the standard of economic compensation, or be ordered to continue to perform the labor contract.

II. Key points of contention

  • Determination of "seriousness": If the system does not specify or list the circumstances and the actions do not match, the court needs to evaluate whether the degree of dismissal has been reached by considering industry practices, job responsibilities, and the consequences of the actions. The discretionary space is large, and the outcome is highly uncertain.
  • System effectiveness: Regulations must be legally compliant, established through democratic procedures, and publicly announced and notified to workers. If any of these requirements are not met, the regulations may not be recognized as a basis for termination. Receipt records, training attendance records, and screenshots of public announcements are key pieces of evidence.
  • Procedure and Evidence: The employer shall notify the trade union of the reasons for the termination before the termination. The employer shall bear the burden of proof for any disputes arising from the termination decision. A broken chain of evidence is the primary reason for the employer's losing the case. Refer toLabor arbitration and legal services for work-related injury compensationThe relevant explanations of it.

III. Professional analysis by Henglue Lawyers

The practical observations of Henglue Law Firm in handling cases of dismissal due to disciplinary violations are as follows: Enterprises rarely lose the cases because the employees have actually violated the rules, but rather because of three aspects: system, evidence, and procedure. At the system level, the employee handbook should clearly list the serious disciplinary violations and the consequences of dismissal, and retain the records of the democratic procedures discussed by the workers' congress or all employees, as well as the signed training records. At the evidence level, the disciplinary facts should be corroborated by multiple sources such as written self-criticism, surveillance footage, system logs, email correspondence, and witness testimonies. A single supervisor's statement is often not accepted. At the procedural level, notifying the trade union before dismissal and obtaining its response, and delivering the dismissal decision in writing and retaining the receipt are all crucial steps. Any omission may be deemed a procedural violation. For the employees, the defense points are also clear: the system has not undergone democratic procedures or been publicized, the evidence of the disciplinary facts is insufficient, the circumstances do not reach the level of seriousness, the dismissal did not notify the trade union, and the punishment exceeded a reasonable timeframe. Both parties should understand that dismissal due to disciplinary violations does not involve simple direct dismissal, but rather a legal dismissal with all the necessary conditions met. The overall design of the employment system can be combined with this.Business and contract dispute resolution services for enterprisesEvaluate the interface between labor employment and contract management.

IV. Practical suggestions and legal basis

Legal basis: Article 4 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012, and effective from July 1, 2013) stipulates that when formulating rules and regulations directly involving the workers' vital interests, the employer shall discuss them with the workers' representative conference or all workers, consult with the trade union or workers' representatives, and make them public for notification; Article 39 stipulates that if the worker seriously violates the rules and regulations, the employer may terminate the labor contract without paying economic compensation; Article 43 stipulates that when the employer unilaterally terminates the labor contract, it shall notify the trade union of the reasons in advance; Article 87 stipulates that if the termination violates the law, the employer shall pay the worker compensation equal to twice the standard of economic compensation. Article 44 of the Interpretation of the Supreme People's Court on Legal Issues Applicable to the Trial of Labor Dispute Cases (No. 26 of 2020, effective from January 1, 2021) stipulates that in disputes arising from the employer's decisions such as dismissal, expulsion, resignation, and termination of the labor contract, the employer shall bear the burden of proof. Practical suggestions: Enterprises should establish a disciplinary system with escalating penalties from warnings to dismissals, and fix evidence simultaneously during the process; when an employee receives a notice of dismissal, they should promptly apply for arbitration within the one-year arbitration statute of limitations (Article 27 of the Labor Dispute Mediation and Arbitration Law) and first copy evidence such as attendance records, payroll records, and communication records.

5. Henglu Law Firm's Reminder

The essence of dismissing employees for serious violations of discipline is to use systems as a yardstick and evidence as proof. If the yardstick does not exist or the employees have not been shown it, no matter how accurate the measurement is, it will be ineffective. Enterprises should focus on daily work, such as reviewing compliance with systems, keeping records of receipt and full documentation of disciplinary actions, rather than making up for it afterwards. Employees who receive dismissal notifications do not need to panic. They should first check the basis of the system and the completeness of the procedures before deciding how to respond, and should not sign unfavorable documents impulsively. The arbitration and trial period for such cases is usually 45 days, which can be extended by 15 days. It is advisable to fix the evidence at the early stage of the dispute. For specific cases, you can consult for advice.Labor arbitration and legal services for work-related injury compensationThe team, or throughBeijing Henglue Law FirmMake an appointment for an assessment to avoid amplifying losses due to procedural omissions.

Q1: If the company dismisses an employee for serious disciplinary violations, is it required to pay compensation?

According to Article 39 of the Labor Contract Law, if an employee is dismissed for serious violations of company rules and regulations, the company does not need to pay economic compensation. However, if the dismissal is deemed illegal—due to invalid rules, unclear facts, or procedural flaws—the company must pay compensation at twice the standard of economic compensation according to Article 87, and the employee may also claim to continue performing the contract. The dividing line between legal and illegal dismissals lies in the effectiveness of the rules, factual evidence, and procedural compliance. In disputes, the employer bears the burden of proof. If any of these three aspects fail, the compensation status will shift from zero compensation to double compensation.

Q2: What kind of evidence is usually required for a company to prove a serious violation of discipline?

The three types of evidence are indispensable: in terms of institutional basis, employee handbooks and records of democratic process discussions, receipt or training records, and screenshots of public announcements; in terms of factual evidence, letters of review, surveillance footage, system and email logs, chat records, customer complaints, and witness testimonies, among others, which provide multiple sources of corroboration; in terms of procedural evidence, union notifications and responses, termination notices, and delivery receipts. According to Article 44 of the "Interpretation of the Labor Law of the People's Republic of China (No. 26 of 2020)", the employer bears the burden of proof in disputes arising from termination decisions, and the case may be lost if the chain of evidence is broken at any link. Employees, on the other hand, should focus on reviewing the effectiveness of the system and the degree of factual corroboration, and seek procedural loopholes.

Q3: After an employee is dismissed, how long do they have to apply for arbitration?

One year. According to Article 27 of the Labor Dispute Mediation and Arbitration Law, the arbitration statute of limitations is one year, calculated from the date when the party knows or should have known that his rights have been infringed. Disputes over disciplinary dismissals are generally calculated from the date of receiving the dismissal notice. Disputes over unpaid labor remuneration during the existence of the labor relationship are not subject to the one-year limitation, but the special rule does not apply to dismissal disputes. If the party asserts his rights against the other party, requests relief, or the other party agrees to perform his obligations, applies for arbitration, or initiates litigation within the statute of limitations, the statute of limitations is interrupted and recalculated; if the party fails to assert his rights within the time limit, he will face the risk of losing the case.

Q4: Can the company terminate an employee for conduct that is not specified in the company's rules and regulations?

It's possible, but it's very difficult. For behaviors not listed in the regulations, the company can claim that they seriously violate labor discipline and professional ethics and cause significant damage to the unit. In practice, the court will evaluate the situation based on factors such as the impact on the position, the consequences of the behavior, and whether it's a repeated offense. Even if the regulations don't specify it, situations that seriously damage the company's interests may still be supported; however, the discretionary nature is high, and the burden of proof is even greater. A safer approach for companies is to list typical situations as much as possible and set a default clause, and to impose penalties according to the severity of the situation. Employees, on the other hand, can argue from the perspectives of minor circumstances, having already received a relatively light punishment, and the regulations not being publicly announced, in order to seek the revocation of the termination decision.

Q5: If an employee violates company rules during the probationary period, can the company dismiss them directly?

During the probationary period, termination of employment must also be based on valid grounds. If the termination is due to the employee's failure to meet the hiring conditions, the employer must first explicitly inform the employee of the hiring criteria and retain evidence of the assessment and evaluation, and the decision should be made during the probationary period. If the termination is due to a serious disciplinary violation, the same requirements for the effectiveness of the system, factual evidence, and the integrity of the trade union process apply. The probationary period is not a period for arbitrary dismissal. A lack of procedures or insufficient evidence still constitutes an illegal termination, and the employee may claim double compensation or demand continued performance of the contract. Enterprises should complete the written confirmation of the hiring criteria and the signing of the system during the onboarding process to avoid difficulties in providing evidence afterwards.

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 Henglue Law Firm