Is it valid to request the employees to resign by notice period beyond 30 days?
Assuming that a three months' advance notice for resignation is required in the employment contract, and now, as with heavy business, the employee terminates the contract without three months' notice. Does it comply with the laws or regulations?
Pursuant to Article 31 of Labor Law of the PRC Article 37 of Labor Contract Law of the PRC (中华人民共和国劳动合同法), a employee may terminate his employment contract upon 30 days’ prior written notice to his employer. Under the regulations, employees have the right to pre-announce termination, which is a basic right for them to terminate the labor contract in advance.
However, for some essential technical or confidential positions, a month is not adequate for employees to effectively complete the transfer of works or tasks.
In practice, Chinese courts prefers to determine that such agreement on 2 or 3 month’s prior written notice to terminate the employment contract is not invalid. The reasons are as follows.
First, according to the provisions mentioned above, under normal circumstances, the employees are entitled to terminate their contracts by 30 days’ prior notice. As right holders, the employees can also waive it through specific agreement or declaration. That means, if both parties have voluntarily agreed on the extension of the prior notice after consultation, it should be legally valid in the employment contract. The courts or administrative institution should also respect the parties’ acceptability and autonomy.
Second, although the law stipulates that workers should give 30 days' notice to terminate the contract, the actual situation is complicated. The advance notice period confirmed by employee and the employer is not contrary to the law. The purpose of that agreement is to achieve a balance between the employee’s freedom to resign and the employer's management order. For the employers, they shall not restrict the workers to unilaterally terminate the labor contract. For the employees, in some special cases, they should continue to work for more than one month after applying for resignation in order to achieve a smooth connection and transition of jobs.
In some regions, the employee shall notify the employer in accordance with the advance notice period stipulated in the labor contract according to the local regulations. For example, pursuant to Article 34 of Beijing Labor Contract Regulations (北京市劳动合同规定), the prior notice period can be more or less than 30 days agreed in the labor contract by parties’ true willing. Such regulations are also stipulated in Article 25 of Anhui Province Labor Contract Regulations (安徽省劳动合同条例) as well as Article 27 of Jiangsu Province Labor Contract Regulations (江苏省劳动合同条例).
In summary, without the violation of mandatory laws and administrative regulations, the prior notice period represents the true intentions of workers and employers so it is valid. But since it is related to explanation of law the practice of the court may changes in different cases.
Larry Zhou, Partner
Landing Law Offices China
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