This article provides an analysis of the distinction between an employee’s resignation request (which is actually a request for mutual termination) and an employee’s notice of resignation under labor law. Additionally, it examines the differences between lawful advance notice of termination and unlawful termination without advance notice. Furthermore, the article expounds on the following viewpoints: the statutory advance notice period is 30 days and cannot be shortened or extended, and the effective date of advance termination is not when the resignation is submitted, but rather when the advance notice period expires.
Article 37 of Labor Contract Law of the People’s Republic of China
A Employee may terminate his employment contract upon 30 days’ prior written notice to his Employer. During his probation period, a Employee may terminate his employment contract by giving his Employer three days’ prior notice.
Article 90 of Labor Contract Law of the People’s Republic of China
If a Employee terminates his employment contract in violation of this Law or breaches the confidentiality obligations or competition restrictions stipulated in his employment contract, and if such violation or breach causes his Employer to suffer loss, he will be liable for damages.
Due to the legal requirement for a 30-day notice period before termination, the following eight questions have arisen:
- If an employee does not specify a specific resignation date, can the employer demand immediate resignation or require the employee to leave within 30 days or after 30 days?
- Can the employer and employee agree on a notice period longer than 30 days?
- Can the employer disregard the 30-day notice period and require immediate resignation?
- If an employee resigns and specifies leaving after 30 days, but leaves without authorization the following day, can the employer terminate the employment relationship due to absenteeism?
- If an employee changes their mind and withdraws their resignation within the 30-day notice period, can they cancel their resignation application?
- If an employee falls ill or becomes pregnant during the 30-day notice period, can they cancel their resignation application?
- If an employee violates regulations severely during the 30-day notice period, can the employer terminate the employment relationship immediately according to Article 39 of the Labor Law?
- If the employer fails to pay the employee’s wages in full and on time during the 30-day notice period, can they terminate the employment relationship immediately according to Article 38 of the Labor Law?
Can the 30-day limitation be shortened or extended?
- The statutory notice period of 30 days is a protection for the employer, facilitating a smooth transition and recruitment process. Even if both parties agree to extend the notice period, such an agreement would be invalid, in order to prevent the employer from exploiting their superior bargaining position to restrict the employee’s resignation rights.
- On the other hand, the 30-day notice period is a limitation on the employee, during which time they may engage in the handover of work, transition to a new job, or arrange other matters, and continue to provide labor and receive compensation. Therefore, the employer may not waive the 30-day notice period and demand immediate resignation from the employee.
- If an employee requests to leave after the 30-day notice period has passed, the employer may demand that the employee leave upon the expiration of the notice period.
An employee applying for resignation VS. informing the employer of their resignation
When an employee applies for resignation, it means that the employee requests to terminate the labor contract through negotiation with the employer. In this case:
- If the employee and employer reach an agreement to immediately terminate the labor relationship, the employee can leave immediately without being subject to the legal notice period.
- If the employee and employer do not reach an agreement, the labor contract will continue as usual. If the employee leaves without further notice or agreement, they may be liable for compensation.
On the other hand, when an employee informs the employer of their resignation, it means that the employee has unilaterally decided to resign and is informing the employer rather than seeking their approval. In this case:
- The specific resignation date proposed by the employee must comply with the legal notice period requirement.
- If the employee and employer agree to immediately terminate the labor relationship, the employee can leave without being subject to the legal notice period.
- If the employee and employer do not reach an agreement and the employee does not further clarify their resignation date, the employee can only leave after the legal notice period of 30 days.
Questions about the effective time of a notice of termination and the consequences of not fulfilling the notice period in labor contracts in China. Here are the main points:
- The right to terminate a labor contract belongs to the party who initiated it, and it should take effect when the notice is delivered. However, the statutory notice period (30 days) is a legal restriction based on a balance of interests. Therefore, if the employee’s notice of termination is communicated to the employer before the end of the notice period, the termination will not take effect until the 30-day notice period has expired.
- If the employee terminates the contract without fulfilling the 30-day notice period, the termination takes effect at the actual date of departure. If the employer agrees to or accepts the termination, it will be considered a mutual agreement. However, if the employer disagrees with the termination, they can request compensation for losses incurred.
- If the termination takes effect at the time of the employee’s resignation, it would lead to a logical paradox, as it would mean that the parties would continue to perform the labor contract during the notice period, but the contract would be effectively terminated.
- The right to terminate a contract cannot be subject to conditions or time limits. Therefore, considering the 30-day notice period as the effective time of termination does not create a legal paradox.
- If there are serious disciplinary issues during the notice period, the employer can exercise the right to immediate termination under Article 39, and the employee can exercise the right to immediate termination under Article 38 in case of non-payment of wages. There is no conflict between the notice of termination and the immediate termination since the notice has not taken effect yet.
- It is not possible for the employee to retract the notice of termination during the notice period, as it would violate the employer’s trust and reliance interests. However, if the employee becomes ill or pregnant during the notice period, they may be able to withdraw the resignation by invoking the “change of circumstances” principle.
It is important to note that these rules apply specifically to labor contracts in China and may differ in other jurisdictions. It is always advisable to seek legal counsel before making any decisions related to the termination of employment.
- If an employee resigns without specifying a resignation date, and the employer and employee agree to terminate the employment relationship by mutual agreement, the notice period is not applicable and can be shorter than, equal to, or longer than 30 days.
- The employer cannot agree with the employee to have a notice period longer than 30 days.
- The employer cannot ask the employee to leave immediately in violation of the statutory notice period.
- If the employee resigns and specifies a departure date 30 days later but leaves without notice the next day, the employer cannot terminate the employment relationship as absenteeism. The employee’s departure without notice is a violation of the law, and the employment relationship has ended. The employer can claim damages for the unfulfilled notice period.
- If the employee resigns within the 30-day notice period, they cannot change their mind and must leave at the end of the notice period.
- If the employee becomes ill or pregnant within the 30-day notice period after resigning, they can withdraw their resignation.
- If the employee seriously violates company rules and regulations within the 30-day notice period, the employer can terminate the employment relationship immediately according to Article 39.
- If the employer fails to pay the employee’s full wages on time within the 30-day notice period after resigning, the employee can terminate the employment relationship immediately according to Article 38.