Investigating employee misconduct in China: evidence before dismissal

1. Define the allegation before collecting the evidence

Identify the employing entity, employee’s role, alleged acts, dates and potentially applicable policy version. Assign a reviewer who is not implicated in the allegation, and separate verified facts from assumptions in the case chronology. An overseas manager’s conclusion is an input to investigate, not proof of misconduct. Article 44 of the SPC Interpretation (I) places the burden of proof on the employer in disputes arising from its dismissal decisions.

Promptly preserve relevant records already lawfully available to the employer. Record who collected each item, when, from which system or custodian, and how. Restrict access to people who need it for the review. Obtain separate legal advice before searching personal devices or private accounts, collecting unrelated information, or transferring investigation files to overseas headquarters; a global investigation policy is not a blanket authorization.

2. Preserve context and authenticity, not just screenshots

Articles 14–15 of the SPC Provisions on Evidence in Civil Litigation cover emails, instant messages, logs and other electronic data, and require originals. A producer’s copy consistent with the original, or a printout or other output directly derived from electronic data that can be displayed and identified, is treated as an original. A screenshot is therefore not automatically worthless, but an isolated image may leave its account holder, completeness or source unproven.

Keep full relevant message threads, attachments, account identifiers, timestamps and export records, with an unchanged master and working copies. Preserve contrary messages and explanations as well. Article 93 requires a contextual assessment of electronic-data authenticity, including system reliability, normal operation and preservation or extraction methods. Article 94 allows courts to confirm authenticity in specified circumstances, including normal business records, subject to sufficient contrary evidence. A company-generated log is not automatically conclusive.

3. Test the explanation and record the interview accurately

Ask the employee and relevant witnesses about specific events and documents, separating what they personally observed from what others told them. Give the employee a meaningful opportunity to explain inconsistencies and provide supporting material. Record questions, answers, participants and corrections; let the interviewee review the record. Refusing to sign a note does not itself prove the underlying allegation. These are practical evidence safeguards, not a claim that every employer investigation has one universal statutory hearing format.

Use a competent interpreter where needed and reconcile the Chinese and English records before headquarters relies on them. An internal HR note should not be labeled a court admission. Article 17 of the evidence provisions requires Chinese translations for foreign-language written evidence or explanatory materials submitted to a court. Keep the original language alongside the translation and explain unresolved differences in the investigation report.

4. Match proved facts to the correct dismissal ground

Article 39(2) of the PRC Labor Contract Law concerns a serious breach of the employer’s rules. Check the rule’s lawful content, democratic adoption procedure and communication to the employee under Article 4 and Interpretation (I), Article 50. Retain the version in force when the conduct occurred and evidence of communication. A headquarters code or an employee’s receipt signature alone does not establish that all these requirements are met. Explain why the proved conduct is serious in its actual context.

Article 39(3), addressing serious dereliction of duty or malpractice for personal gain causing major damage to the employer, has different elements. If relying on that ground, establish the conduct, major damage and causal link; do not assume every disciplinary breach satisfies it. Equally, do not import a mandatory financial-loss requirement into every Article 39(2) case. Poor performance under Article 40(2) follows a different route, including training or job adjustment followed by continued inability to perform; it cannot simply be renamed misconduct.

5. Review the procedure and decision file before sending notice

Article 43 requires prior notification of unilateral termination reasons to the union, consideration of its views and written notification of the result. Interpretation (I), Article 47 addresses employers with an established union: an otherwise qualifying Article 39 or 40 dismissal without prior notification supports the employee’s compensation claim, except where the procedure was remedied before the lawsuit was filed. Do not plan to rely on that exception instead of completing the procedure in advance; check the applicable arrangements if no union has been established.

Record the decision maker’s authority, the proved facts, applicable ground, remaining evidential gaps and service arrangements. Under Article 48, unlawful dismissal can require continued performance if the employee requests it; where the employee does not request it or the contract cannot continue, Article 87 compensation applies. An internally approved investigation report does not eliminate that risk. If key facts remain unproved, reassess the proposed action rather than fill gaps with assumptions.

Prepare the contract, applicable policy and adoption records, communication evidence, source records and extraction log, interviews and responses, damage calculation if relied on, union correspondence, decision and proof of service. For initial advice, provide a non-confidential outline of the employing entity, work city, allegation, relevant dates and intended action. Arrange secure document review before sending personnel or investigation files.