One of our clients was trying to terminate one of its employees who had been held detention by the local Public Security Bureau for 3 days due to a drunken fight.
The client mentioned the intended reasons for the termination in the Terminate Notice are 1) the employee is subject to criminal liability in accordance with the law; 2) the employee has materially breached the client’s rules and regulations.
Thank goodness they send us the termination notice for review and we stopped the termination, as the reasons they intended to used were totally wrong.
First, “Hold Detention” by the Public Security Bureau and “Hold Criminal Liability” are different legal terminology. Generally speaking, “Hold Criminal Liability” means “Been sentenced to criminal penalty by the court”, it is the result of the whole criminal case procedure. As for “Hold Detention”, depending on the extent of potentially liability, there are two types of Detention, “Administrative Detention” and “Criminal Detention”. “Criminal Detention” is more serious and it is the triggering step of a criminal case. After we reviewed the documents provided by the client, in the “Detention Notice” issued by the Public Security Bureau, we pointed out that the employee was held on “Administrative Detention”.
Second, after we reviewed the client’s company documents and discussed matters with the client, we found that there were no company rules or regulations that granted the client the right to terminate the contract by the reason of the employee being held in detention by the public security bureau. The fact is, if the client had formulated the company’s rules or regulations using words like “the company has the right to terminate the contract where the employee is held in detention by the public security bureau” they would have been able to terminate
Following our review, our client asked us to help them re-formulate the company’s labor documents system to avoid such legal risks in the future. My advice for the day: if you want to fire an employee, do it carefully.