Wrongful Termination of Foreign Employees

Wrongful Termination of Foreign Employees in China: Legal Framework and Practical Guidance#

Foreign employers in China face a complex legal landscape when terminating employees, whether Chinese nationals or expatriate staff. China's labor laws provide strong protections for employees, and the consequences of an improperly handled termination can be severe, including double severance liability, reinstatement orders, and damage to the employer's reputation in China's tight-knit expatriate community.

This article examines the legal framework governing termination of employment in China and provides practical guidance for foreign employers navigating this challenging area.

Types of Termination Under Chinese Law#

The PRC Labor Contract Law establishes three categories of employment termination, each with different procedural requirements and severance obligations:

Understanding these categories is essential because the category determines both the procedural requirements and the financial consequences of the termination.

Termination for Employee Fault#

Article 39 of the Labor Contract Law permits employers to terminate employment without notice or severance when the employee has committed specific misconduct. The recognized grounds include failure to meet probation conditions, serious violation of employer's policies, serious dereliction of duty causing material damage, dual employment affecting job performance, fraudulent inducement of the employment contract, and criminal prosecution.

Chinese courts and arbitration tribunals strictly construe the Article 39 exceptions. Employers bear the burden of proof and must demonstrate not only that the misconduct occurred but also that the employer's policies clearly defined the prohibited conduct, the policies were properly communicated to the employee, and the employer consistently enforced the policies against all employees. Inconsistency in enforcement is one of the most common grounds for employees to successfully challenge Article 39 terminations.

No-Fault Termination#

Article 40 permits employers to terminate employment with notice or payment in lieu of notice when the employee cannot perform the job after training or position adjustment, the employee is incapacitated by illness or non-work injury, or fundamental changes in circumstances make contract performance impossible. In each case, the employer must follow a specific procedure before termination: medical treatment period must expire for illness cases, training or position adjustment must be offered for performance cases, and negotiation for contract modification must be attempted for changed circumstances cases.

Special Protections Against Termination#

Article 42 prohibits termination during certain protected periods, including medical treatment periods for illness or injury, pregnancy, childbirth and breastfeeding for female employees, work-related injury recovery periods, and continuous service of 15 years with less than 5 years to retirement. Violation of these protections is automatically unlawful and can result in reinstatement orders or maximum severance awards.

Foreign Employee Termination#

Terminating foreign employees presents additional complexities beyond those applicable to Chinese employees. The foreign employee's work permit and residence permit are tied to their employment, meaning that termination triggers immigration consequences that must be managed carefully. The employer must cancel the work permit with the bureau within a specified period after termination, and the foreign employee must either obtain a new work permit with a different employer within the allowed transition period or leave China.

• Work Permit Cancellation: Must be filed within 10 days of termination
• Residence Permit: Foreign employee has 10 days to leave China or obtain new permit
• Transition Period: 30-day grace period for finding new employment (may vary by locality)
• Severance Calculation: Same formula as Chinese employees, but may be affected by expatriate contract terms
• Contractual Protections: Expatriate contracts often provide additional severance beyond statutory minimum

Procedural Requirements#

Employers terminating employees under any category must follow specific procedural steps to minimize litigation risk. These include notifying the labor union in advance, providing written notice of termination with clear reasons, obtaining the employee's signature acknowledging receipt, calculating and paying all amounts due including accrued vacation and unpaid wages, issuing a certificate of termination and de-registering the employee from social insurance. Failure to follow proper procedures can result in the termination being deemed unlawful even if substantive grounds for termination existed.

Dispute Resolution#

Employment disputes in China follow a mandatory pre-litigation arbitration procedure. The employee must file a labor arbitration application within one year of becoming aware of the dispute, and the arbitration award is binding unless challenged in court within 15 days. The arbitration process typically takes 45 to 60 days, although complex cases may take longer. During the arbitration, the employer bears the burden of proving the lawfulness of the termination, making documentation of all performance issues, policy violations, and procedural steps critically important.

Key Recommendations for Foreign Employers

Maintain comprehensive employment contracts that clearly define job responsibilities, performance standards, and policies. Document all performance issues, disciplinary actions, and the employee's responses in writing. Follow the full procedural requirements for every termination, including union notification when applicable. Obtain independent Chinese legal advice before initiating any termination that carries significant litigation risk. Consider settlement options where the legal merits are uncertain, balancing the cost of severance against the cost and risk of litigation. By following these recommendations, foreign employers can significantly reduce their exposure to wrongful termination claims and maintain productive employment relationships with their Chinese workforce.

Documentation Best Practices#

The single most important factor in successfully defending a termination is documentation. Employers should maintain written performance reviews that clearly identify areas where the employee fails to meet expectations, with specific examples rather than general statements. Written warnings should be issued for policy violations, clearly stating the policy that was violated, the specific conduct that constituted the violation, and the consequences of further violations. Training records should document all training provided to the employee, including training on company policies and procedures. Correspondence should be maintained regarding any discussions about performance improvement plans, position adjustments, or contract modifications proposed to the employee before termination. This documentation serves as the primary evidence in any subsequent legal proceedings and can make the difference between a successful defense and a finding of unlawful termination with double severance liability.

Settlements and Negotiated Departures#

In many cases, a negotiated settlement is preferable to litigating a contested termination, even when the employer believes it has strong legal grounds for termination. The cost of litigation — including legal fees, management time, and the potential for adverse publicity — often exceeds the cost of a reasonable settlement. Mr. Zhang advises employers on the strategic considerations involved in settlement decisions, including the strength of the legal case, the employee's litigation history and likelihood of pursuing claims, the potential reputational impact of litigation, and the broader implications for workplace morale and future hiring. He has negotiated numerous settlement agreements that achieved the employer's objective of separating from an employee while avoiding the cost, uncertainty, and disruption of contested proceedings.

Mr. Zhang's practice demonstrates that the key to successful employment law management in China is combining preventive compliance with effective dispute resolution capabilities. Employers who invest in proper employment contracts, clear policies, thorough documentation, and regular compliance audits significantly reduce their litigation risk and are better positioned to defend their employment decisions when disputes arise. His clients value his practical, business-oriented approach to employment law that focuses on achieving the employer's legitimate business objectives while maintaining full compliance with China's employee-protective legal framework.

Legal Grounds for Termination Under Chinese Labor Law#

The Labor Contract Law of the People's Republic of China provides three categories of employment termination with distinct legal requirements. Termination by mutual agreement under Article 36 allows both parties to end the employment relationship through a written agreement, with the employer still obligated to pay severance. Unilateral termination by the employer with notice under Articles 40 covers situations where the employee is unable to perform their duties after medical treatment for a non-work-related illness or injury, incompetence after training or position adjustment, or major changes in economic circumstances that make the original contract impossible to perform. Summary dismissal without notice under Article 39 is permitted only for serious causes including material breach of company regulations, dereliction of duty causing substantial harm, or criminal liability, and requires the employer to bear the burden of proving such grounds exist.

Severance Calculation and Dispute Resolution#

Severance pay for wrongfully terminated foreign employees is calculated at the rate of one month's average salary for each full year of service, with periods exceeding six months counted as a full year and periods less than six months counted as half a year. The monthly salary used for calculation is capped at three times the average social wage in the locality, as published annually by the statistical authorities. Foreign employees who believe they have been wrongfully terminated may file for labor arbitration within one year of discovering the violation, with arbitration proceedings at the local labor dispute arbitration committee as the mandatory first step before any court action. The arbitration committee typically renders a decision within 45 days of accepting the case, and either party may appeal the arbitration award to the people's court within 15 days of receipt. Foreign employers in China should maintain detailed personnel records including signed employment contracts, performance evaluations, disciplinary notices, and evidence of any training provided to terminated employees to defend against wrongful termination claims.