Judging by the number of cases on the Internet, this is the most common type of labor dispute between foreigners and Chinese employers.
Due to labor disputes with foreign workers, some Chinese employers are unwilling to provide the Dismissal Certificate (离职证明) and Work Permit Cancellation Form (就业证注销单), which will affect the worker's next application for a work visa and affect his future legal work and residence in China, since without these documents a foreigner will not be able to legally find a job and get a work visa.
According to Article 25 of the Labor Law, an employer may terminate an employment contract if the employee has one of the following circumstances.
1. During the probationary period it is proved that they do not meet the conditions of employment;
2. Serious violation of labor discipline or employer's rules;
3. Serious dereliction of duty, abuse of office for personal gain, causing serious damage to the interests of the employer;
4. Were brought to criminal responsibility in accordance with the law.
In general, apart from finding common ways to negotiate with a Chinese employer, legal means of resolving labor disputes include labor arbitration (劳动仲裁) and litigation (claiming) (法院诉讼).
In this article, we will talk about labor arbitration and how foreign employees can apply for labor arbitration in China.
LABOR ARBITRATION (劳动仲裁) is a necessary procedure for the parties to a labor dispute to file a claim with the people's court. If the parties are dissatisfied with the results of the arbitration, they may additionally file a claim.
According to the relevant regulations on the management of the employment of foreigners in China, labor disputes between employers and employed foreigners must be dealt with in accordance with the Labor Law of the People's Republic of China and the Regulations of the People's Republic of China on the Settlement of Labor Disputes in Enterprises.
However, only obtaining a legitimate employment qualification is necessary for foreigners to initiate labor arbitration.
Due to labor disputes with foreign workers, some employers are unwilling to actively cooperate in issuing Certificates of Dismissal (离职证明) and Work Permit Cancellation Form (就业证注销单), which will affect the worker's next work visa application and legal residence in China .
Types of disputes considered by general labor arbitration:
- Disputes about the confirmation of labor relations;
- Disputes about the conclusion, execution, amendment, termination of the employment contract;
- Disputes about the dismissal of an employee;
- Disputes about working hours, breaks, vacations, social insurance, benefits, training or work safety;
-Disputes about wages, medical expenses for work injury, economic compensation, etc.;
Foreigners can apply for labor arbitration at the labor arbitration office of the administrative district in which their company is located.
The foreigner must provide the following documents:
- Work permit
- Relevant evidence (videos, documents, employment contracts and other supporting documents)
The Arbitration Commission decides whether to accept or reject the application within five days from the date of receipt of the arbitration application, but, as a rule, the Application Processing Form (受理单) will be completed on the day the application is submitted.
Further, the consideration of the labor dispute begins on the merits, with the possible request for additional documents from the parties, and a decision is made based on the results of the consideration.
In practice, many Chinese employers do not bring a labor dispute to a foreigner’s appeal to labor arbitration and everything ends with an agreement with a foreign employee if the foreigner has all the necessary documents and is determined to submit them to labor arbitration for consideration of the labor dispute