解除劳动合同时“严重违反规章制度”的判定

The Judgment of “Serious Violation of Rules and Regulations” in the Termination of the Employment Contract

劳动合同的解除是劳动合同法中的一个重要问题,因劳资双方劳动合同解除引发的纠纷占有较大比例,其中《劳动合同法》第39条第二款规定劳动者严重违反用人单位的规章制度的规定更是饱受争议,用人单位可以解除劳动合同,立法赋予用人单位附条件的单方解除权,但是该权利在实践中操作困难。首先是劳动法意义上的规章制度包含哪些内容,如何界定规章制度内容的外延与内涵;其次规章制度是否以合法合理为适用前提?合法合理由谁判断如何判断?对于小型企业并未制定严格的规章制度是否就意味着丧失了此法条赋予的单方解除权;再次何为“严重违反规章制度”,其中如何认定达到“严重”的程度并无进一步阐释,也无相关的司法解释进行指引。本文就用人单位单方解除劳动合同时“严重”违反规章制度的判定问题进行探讨。

The termination of labor contracts is an important issue in labor contract law. Disputes arising from the termination of labor contracts account for a large percentage. Among them, the provision of Article 39(2) of the Labor Contract Law, which stipulates that if an employee seriously violates the employer’s rules and regulations, the employer has a right to unilaterally terminate the contract, is particularly controversial. Although the law grants the employer the right to terminate the contract unilaterally under certain conditions, it is difficult to apply this right in practice. Firstly, what content do the rules and regulations refer to in the sense of labor law? How to define the coverage and connotation of the rules and regulations? Secondly, is legality and reasonableness a prerequisite for the application of rules and regulations? Who judges legality and reasonableness, and how? Does the absence of strict rules and regulations in small businesses mean that they lose the right to unilaterally terminate the contract granted by this legal provision? Thirdly, what constitutes “serious violation of the rules and regulations,” and how is the degree of seriousness determined without further explanation or guidance from judicial interpretations? This article explores the standard for determining serious violations of rules and regulations when employers unilaterally terminate labor contracts.