中国今日解雇：复职风险及雇主应对策略
A Supreme People’s Court judicial interpretation effective September 1, 2025, has shifted the risk profile of China employment termination disputes. Employers that have treated unlawful termination claims as a predictable, mostly financial exposure should reassess that assumption, because it is now harder to avoid continued performance when an employee affirmatively asks for it.
One caution up front. China employment practice is local. National guidance from the Supreme People’s Court matters, but the speed and intensity of adoption can still vary by city and by decision maker, especially at the labor arbitration and basic court level.
关键要点
Interpretation (II) narrows and formalizes when tribunals and courts may find that an employment contract cannot continue to be performed after an unlawful termination, and that finding often determines whether reinstatement is ordered.
Interpretation (II) also clarifies wage exposure for the dispute period in cases where the contract can continue and the employee seeks wages for that period, calculated using the employee’s normal wage standard.
For employers with weak documentation, inconsistent handbook enforcement, or a habit of waiting too long to negotiate, termination disputes are more likely to become expensive, slow, and operationally disruptive.
What changed, in plain business terms
China termination disputes have always been document driven, and employers have always carried a heavy burden of proof. In many cases, however, employers relied on a practical workaround. Even if the employer lost on legality, it could often argue that the relationship could not realistically continue, pay statutory compensation, and move on.
Interpretation (II) constrains that workaround by listing when a tribunal or court may conclude that the contract already cannot continue to be performed after an unlawful termination. The result is not automatic reinstatement. The result is that some employer arguments that used to work are now less reliable, particularly in ordinary cases where the termination file is thin.
The baseline law employers need to remember
Article 48 of China’s Labor Contract Law is the core continued performance rule. If an employer terminates in violation of the law and the worker demands continued performance, the employer must continue performing the labor contract, unless it becomes impossible for continued performance of the labor contract.
The key question has always been when “impossible” applies. Interpretation (II) clarifies that question, and the practical implication for employers is that it will apply less often than many have assumed in routine disputes.
What Interpretation (II) says about when a contract cannot continue
Interpretation (II) identifies specific circumstances in which a court may find that an unlawfully terminated labor contract cannot continue to be performed.
These include circumstances where the labor contract expires during arbitration or litigation and there is no legal requirement to renew or extend it. They include circumstances where the employee begins receiving basic pension benefits. They include circumstances where the employer is declared bankrupt.
They also include circumstances where the employer is dissolved or ceases to exist as a legal entity, unless the dissolution results from a merger or division where employment obligations typically transfer to a successor entity. This carveout matters because a merger or division is often a corporate restructuring, not a true disappearance of the employer’s obligations.
Interpretation (II) further addresses cases where the employee takes another job that seriously affects performance of the original duties, or the employee refuses to terminate the new employment upon the employer’s request. Finally, it preserves a catchall category for other situations where continued performance is objectively impossible.
The phrase “objectively impossible” is doing real work. It signals a higher bar than inconvenience, interpersonal conflict, or an employer’s preference not to reinstate.
A concrete example of how leverage changes
Consider a common scenario. A foreign company terminates a sales manager in Shanghai for poor performance. Management is frustrated, but documentation is thin. There are no written warnings, no coherent improvement plan, and performance standards have been applied inconsistently.
The employee files for labor arbitration and demands reinstatement.
Before Interpretation (II), employers often argued that even if they lost on procedure, the relationship could not realistically continue. Tribunals sometimes accepted that framing and awarded compensation instead of reinstatement.
Under the new framework, that argument is weaker. Unless the employer can fit the facts into one of the defined categories or show objective impossibility, reinstatement becomes a credible remedy. Once reinstatement is credible, the employee’s settlement leverage increases sharply.
The hidden cost: back wages during the dispute period
Many employers focus on statutory compensation and underestimate time based wage exposure.
Interpretation (II) makes clear that where an employer unlawfully terminates a contract that can continue to be performed, and the employee seeks wages for the period between termination and continued performance, those wages should be paid at the employee’s normal wage rate.
Labor disputes can take many months and can extend significantly if the case proceeds beyond arbitration. The wage math escalates quickly for higher paid employees.
A simple illustration makes the point. An employee earning RMB 30,000 per month who accrues twelve months of dispute period wages represents RMB 360,000 in wage exposure, before legal fees, management time, and operational disruption.
Statutory compensation is a different bucket. In many unlawful termination scenarios, compensation is tied to statutory severance and is commonly calculated as twice the statutory severance amount, subject to caps and local rules. Dispute period back wages are separate, and in reinstatement driven disputes they can be the larger number.
Why many foreign employers misread where the risk is
Many foreign companies assume termination disputes can always be converted into monetary settlements, or they focus on whether an employee might try to sue outside China.
In practice, the meaningful leverage usually sits in local labor arbitration and local courts in China, where reinstatement and dispute period wages are real remedies. Once an employee frames the dispute around continued performance rather than money, the employer’s negotiating position can deteriorate quickly, particularly if the employer’s documentation is inconsistent.
Who this affects most
This change does not affect all employers equally.
Risk is highest for companies with large workforces, informal performance documentation, inconsistent handbook enforcement, or frequent reliance on position elimination or restructuring as termination grounds. Risk is also high for companies planning workforce reductions, because close cases become more expensive when reinstatement is a credible request.
Risk is moderate for smaller white collar operations that rely heavily on manager discretion and negotiate only after disputes escalate.
Risk is lower, though not eliminated, for companies that terminate infrequently and follow a disciplined, localized China termination process with strong documentation.
What to do this week if you have employees in China
Start by auditing any pending terminations and any recently completed terminations that are likely to be challenged. The goal is to assess whether you can prove lawful grounds and clean procedure, and whether you are prepared to live with reinstatement risk if you lose.
Next, identify your weakest potential termination cases before they become cases. Pick the roles where a termination would be most likely to end in a documentation fight and start building a record now, or decide in advance that these should be negotiated exits rather than unilateral terminations.
Then schedule a focused China employment compliance review covering your employee handbook, your performance management process, and your termination checklist. The goal is not perfection. The goal is to stop avoidable losses caused by documentation and process gaps.
Employer action steps that actually hold up
If you want fewer reinstatement problems, the solution is procedural discipline.
Your China employee handbook must be enforceable where your employees actually work, and it must be properly implemented.
Performance management must be treated as evidence creation, not an annual HR exercise. If you cannot prove your story with documents, you do not really have a story.
Termination checklists must be followed consistently, not treated as optional guidance.
Settlement strategy should be recalibrated. Weak cases usually cost less when resolved early, before reinstatement becomes the employee’s primary leverage.
常见问题解答
在中国解雇员工时，外资雇主最常犯的单一错误是什么？
假设争议将按照美国或欧洲的方式进行裁决。在中国，案件通常由文件和程序决定。
在中国解雇员工前我们该做什么？
在解雇前对法律依据、证据、程序及当地惯例进行审计。若记录薄弱，协商离职通常是更优选择。
《解释（II）》是否意味着现在大多数情况下都会批准恢复原状？
编号。法庭和法院正被引导采用更狭窄的框架来拒绝恢复原职。结果仍取决于事实、证据和当地适用情况，而各地实践可能存在显著差异。
如果我们输了，还能只付赔偿金就结束关系吗？
有时。但若员工要求继续履行合同，且该情况不属于明确定义的"无法继续"情形，则必须将恢复原职视为切实存在的风险。
非法解雇补偿与争议期间的欠薪有何区别？
非法解雇补偿通常属于法定赔偿范畴，与法定遣散费挂钩，通常按法定遣散费的两倍计算，但受上限规定及地方规则约束。争议期间的欠薪指从解雇至继续履约期间的工资，按正常工资标准计算。这两项补偿相互独立，在要求复职的争议中，工资补偿通常数额更大。
在实践中，“客观上无法履行”具体指什么？
这意味着标准高于职场紧张关系或雇主偏好。雇主应预期仲裁庭将要求具体可证的理由，而非结论性陈述。以下表述通常无法单独构成充分理由："我们已失去信任"、"团队感到不适"或"复职将造成干扰"。 可能符合要求的理由（需视证据及当地惯例而定）包括：经书面记录证实无法合法履行工作职责、丧失岗位所需执照、存在经证实的严重安全隐患，或其他使员工继续履职在实质上不可行（而非仅是不理想）的事实依据。
取消员工职位是否会导致复职请求被驳回？
你不应理所当然地认为如此。仲裁庭可能会审查该消除措施是否真实、有据可查且与实际运营变更相关，以及根据解释(II)条款，是否客观上无法继续履行。
如果员工已经接受了其他工作呢？
解释（II）适用于以下情形：员工的新雇佣关系严重影响其履行原有职责，或员工拒绝应雇主要求终止新雇佣关系。根据证据和当地适用情况，这可作为认定合同无法继续履行的依据。
员工在哪个城市工作重要吗？
是的。劳动仲裁和法院实践具有地域性。解释（II）旨在统一裁决结果，但各地适用仍存在差异。
我们计划在中国进行裁员。这是否改变了我们的策略？
这应当促使你更加谨慎。裁员本就需要审慎的流程和统一的选拔标准。若在争议性裁员中更易恢复职位，那么文件记录和流程规范就显得尤为重要——特别是对于那些可能主张裁员名不副实的员工。
《解释（二）》是否影响竞业禁止纠纷？
是的。解释（II）也涉及非竞争相关问题。若在中国使用竞业禁止条款，应与中国劳动法律师共同审查协议及实施实践，确保其符合现行指导意见。
我们能否要求员工签署放弃复职权利的豁免书？
在协商离职中，豁免条款和广泛免责条款常被提及，但其可执行性取决于具体事实，包括离职是否真正双方自愿、员工是否获得实质性补偿，以及当地决策者是否认为协议具有自愿性和公平性。更稳妥的做法是：要么建立合法解雇记录，要么协商达成真正双方自愿的离职协议，且条款足够强硬，使员工宁愿选择干净利落地离职，也不愿追求复职。
这是否适用于香港或台湾地区的员工？
第II项解释适用于中国大陆。香港和台湾拥有独立的法律体系。
归根结底
China employment termination was never simple. Interpretation (II), effective September 1, 2025, makes it riskier to assume that an unlawful termination can always be resolved with a predictable payout. Employers that strengthen documentation, tighten procedures, and make earlier settlement decisions will be best positioned to manage reinstatement risk going forward.
