用人单位惩戒权的法理基础与法律规制

The Legal Basis and Regulation of the Employer's Power to Discipline the Employee

实践中,许多用人单位都规定了对雇员的惩戒规则,以对违规之雇员实施惩戒。雇主惩戒权既是雇主的一种固有权力,又建立在契约基础之上。在法律上有必要对雇主惩戒权实行必要的规制。惩戒事由必须与工作有关,且是违反劳动者义务的行为。在法律上应认可警告、扣薪、调岗、解雇等惩戒措施,不宜认可"赔偿损失"、"停职"作为惩戒措施。惩戒还应遵循规则明确、公平合理、程序正当等原则。未来我国在劳动法修改中应增加有关惩戒制度的条款,规定惩戒制度的一般原则,将具体惩戒事由和措施规则交由用人单位依法制定和实施,并接受裁判机构的审查。

Most employers incorporate disciplinary grounds and measures into their internal rules and regulations. Although the disciplinary power is an inherent power of the employer and is based on contract, the discipline of employees by employers should be subject to the restriction by law. The grounds for disciplinary measures should be work - related acts in breach of the duties of the employee. The law may recognize such disciplinary measures as warning, wages decrease, demotion and discharge, but not ＂damages＂ and ＂suspension＂. The disciplinary system should also follow the principles of clearness of rules, fairness and reasonableness, due process, etc. In the future revision of labor laws, China should provide for general rules on discipline and allow the employer to adopt and implement, in accordance with law, their own detailed rules on grounds for and types of disciplinary measures, which should however be subject to the review of the labor arbitration authorities and courts.