我国违纪解雇法律适用困境与出路探究

Legal Application Dilemma of Disciplinary Dismissal and Its Solution

《劳动合同法》将"违反劳动纪律"剔出过错性解除的依据后,用人单位以违纪为由解雇劳动者,必须满足严格的实体和程序性要求,即有证据证明劳动者存在严重违纪行为,且该违纪行为必须经公司规章制度书面明确规定,并经过民主、公示程序,否则会导致违法解雇的不利后果。我国违纪解雇适用遭遇困境,原因之一在于对劳动者过度倾斜保护的立法理念,其二系对法律文本的严格解释和适用。建议借鉴国外的相关立法,扩大我国违纪解雇的援引依据,限缩解雇保护适用范围,以此释放劳动力市场用工活力。

＂In violation of labor discipline＂ being removed from fault dismissal basis in the Labor Contract Law, stringent substantive and procedural requirements must be met when the employer dismisses employees on grounds of violation of discipline. That is, there must be evidence proving that the laborer has violated the labor discipline, and the violation must be clearly defined by the company＇s rules and regulations and has gone through the procedures of democracy and publicity ; otherwise, it will lead to the adverse consequences of illegal dismissal. One of the reasons for our difficulties in disciplinary dismissal is due to the legal concept of over-protection for laborers, and the other reason is strict judicial interpreta- tion and application of the legal texts. It is suggested that lessons from the relevant foreign legislation be drawn to expand the citing basis of disciplinary dismissal, narrow the scope of dismissal protection and thus release the vitality of the labor market.