1. Background

The client, a South African national, had worked since February 2025 as a lead foreign teacher at a childcare services company in Longgang, Shenzhen, on a monthly salary of approximately RMB 25,000. In November 2025 the employer served a Notice of Termination of the Labour Contract under Article 39 of the Labour Contract Law, relying on frequent use of a mobile phone while leading the class, frequent lateness and absence without leave, and terminated the contract unilaterally.

The client considered that these grounds could not stand, and instructed Zhai Chenhong of Yingke Law Firm (Shenzhen) to apply for arbitration before the Longgang District Labour and Personnel Dispute Arbitration Commission of Shenzhen.

2. Key difficulties and issues in dispute

The case presented three difficulties.

• The employer produced three warning letters, surveillance footage, attendance records and training sign-in sheets, giving the appearance of serious misconduct.

• The client was a foreign national with an objectively limited understanding of Chinese-language internal rules, a point which had to be evidenced and argued actively, since it would otherwise easily be overlooked at the hearing.

• At the hearing the employer raised further defences — 111 days of cumulative lateness and concealment of illness on recruitment — seeking to widen the scope of review.

The issues in dispute were therefore: whether the grounds for termination held; whether the employer’s internal rules bound the client; and how the compensation base should be determined.

3. Counsel’s approach

• Confine the scope of the termination: argue that the right to terminate is a formative right and that review is bounded by the grounds stated in the notice of termination at the time of service; the defences raised for the first time at the hearing were supplementary grounds added after the event and fell outside that scope.

• Dismantle each of the three warning letters: as to mobile phone use, the employer had not previously enforced its phone-storage rule, its own management was defective, and there was no evidence of any further breach after the warning; as to lateness, rely on the employer’s own attendance rules, under which up to three instances a month and no more than 15 minutes in total require no payment, showing that the employer itself accepted that brief and infrequent lateness was not serious misconduct.

• Develop the bilingual-publication duty: given the particular position of foreign workers, argue that an employer applying its internal rules owes a special duty to publish them bilingually and bring them effectively to the employee’s notice; Chinese-language training materials alone could not show that the rules had been effectively communicated.

• Establish the compensation base: use bank transfer records whose authenticity both sides accepted, exclude amounts not so confirmed, and calculate the average monthly wage for the months before termination.

4. The tribunal’s findings

On mobile phone use, the tribunal held that surveillance footage alone could not show that the use was unrelated to teaching, nor was there evidence that it disrupted teaching order or created a safety risk; after receiving the warning letter the client had replied expressly and substantially reduced the frequency, so that the evidence was insufficient to establish subjective bad faith or persistent breach.

On lateness, the warning letters listed only a dozen or so instances of lateness of between one and nine minutes between April and September 2025, within the tolerance recognised by the employer’s own attendance rules, and not reaching a level of seriousness warranting termination.

On the single day of absence, the client had genuinely needed leave to attend a psychiatric outpatient appointment; although it was inappropriate not to state the reason clearly, this was consistent with the ordinary reasonable conduct of a natural person and caused no serious adverse consequences.

Crucially, the tribunal accepted counsel’s submission that an employer applying its internal rules to a foreign employee owes a special duty to ensure, by bilingual publication and effective notice, that the employee fully understands the meaning of the rules and the consequences of breaching them. Here the training materials were in Chinese only and there was no bilingual version, the procedure was defective, and the rules did not bind the client.

5. Outcome

The tribunal found that the termination of the labour contract on the grounds stated in the Notice of Termination lacked sufficient factual basis and valid regulatory support and constituted unlawful termination. The average monthly wage before termination was calculated at RMB 23,779.11 and, having regard to the length of service, the tribunal ordered the respondent to pay compensation for unlawful termination of RMB 47,558.22 (RMB 23,779.11 × 1 month × 2).

Under Article 58 of the Regulations of the Shenzhen Special Economic Zone on the Promotion of Harmonious Labour Relations, the tribunal also awarded RMB 5,000 in legal fees in proportion to the success of the claim. The remaining claims were dismissed.

6. Practical advice for foreign employees and employers

• For foreign employees: on joining, ask for and keep a bilingual (Chinese and English) copy of the labour contract and staff handbook; if any part is unclear, ask the employer to explain it in writing and keep a record of the exchange.

• For foreign employees: on receiving a warning or penalty notice, reply in writing setting out your objections and keep proof of delivery. Do not remain silent, or you may be taken to have accepted it by implication.

• For employers: in the case of employees whose first language is not Chinese, internal rules must be published bilingually, explained clause by clause and acknowledged by signature, with the translation and training evidence retained. Otherwise it will be difficult to rely on them as a lawful basis for termination.

• For employers: assess any termination carefully before proceeding — the grounds stated in the notice of termination set the boundary of review, and reasons added later will normally not be admitted.