Mr. Lin’s right kidney was removed. He was dismissed by his employer because this was deemed to be a ‘critical physical defect’ which did not satisfy the conditions of employment. Yet Mr. Lin believed that his physical condition would not impact his routine work. Does the unit have the legal right to dismiss Mr. Lin? This case considers the legal validity of an employment condition.

I. Case Playback

Mr. Lin's right kidney was removed after he suffered an injury when falling down the stairs. Several years after his recovery, Mr. Lin participated in a bank's personnel recruitment meeting. While filling in the personnel recruitment form for the physical examination, Mr. Lin checked "normal" in the column of "Abdominal Cavity" and "healthy" in the column of "Examination View." Thereafter, Mr. Lin was formally employed by the bank. One month later, the bank was informed and sent Mr. Lin to the hospital for a type-B ultrasonic inspection. The outcome confirmed that "the right kidney was removed, and the left kidney is normal.” The bank then unilaterally decided to dissolve Mr. Lin's labor contract. The removal of his right kidney constituted a critical physical defect and thus did not satisfy the subsidiary bank's Temporary Regulation of Recruitment of Workers and Managerial Staff, Call-in Staff and Transformations of New employees (hereinafter referred to as Temporary Regulation) and violated the employment conditions of his probation period.
Mr. Lin applied for arbitration to the Labor Dispute Arbitration Committee. He thought that based on clinical medical practice, although one kidney was removed, as long as the kidney function is normal for the remaining kidney, his condition would not significantly impair his body function. He also provided a hospital diagnosis certification that certified his kidney function as normal and stated that he could work normally. In his job is a bank accountant, a missing kidney would neither pose any threat to his job nor impair his appearance as a bank staff member. In addition, the national physical examination policy stipulates that the Common University Students Recruitment Physical Examination Standard allows an applicant with only one kidney to enroll in any major but geology. For reasons stated above, he asked the Arbitration Committee to reverse the bank’s decision to dissolve his labor contract and to oblige the bank to continue implementing the labor contract..
The bank argued that Mr. Lin did not inform the physician of the removal of his right kidney. He did not perform his obligation to honestly disclose relevant health information. And he did not satisfy the employment conditions stated in the bank's Temporary Regulation that new employees have to be in good physical condition without severe sickness or defect.
Is Mr. Lin able to win the case? Could the lack of a second kidney be a condition to dissolve a labor contract? Is a unit allowed to dissolve a labor contract unilaterally during probation?

II. Legal Background

Sub-Article 1 of Article 25 of the Labor Law states: “If laborers are proven unqualified for the employment conditions during probation, the unit is allowed to dissolve the labor contract.” Whether the employees are proven to satisfy the employment conditions will decide whether they can keep their position after the probation period. But the Labor Law does not provide a clear answer about what exactly the employment conditions shall be.
Sometimes the Court and the Arbitration Committee will deem the employment conditions to be the same as the recruitment conditions. Actually, the two are different. Recruitment conditions are simply basic qualification requirements for selecting laborers during personnel recruitment. They are rough selection requirements. Furthermore, the recruitment conditions are still restricted by public policies, such as anti-discrimination regulations. Employment conditions are the final conditions under which a unit decides to hire a laborer. A unit is allowed to decide its own employment requirements so as to evaluate and appraise laborers during probation. Applicants who do not satisfy the recruitment conditions will not be employed. If employees fall short of the employment conditions, the unit can dissolve the labor contract. If units have no consummate employment conditions, then it would be difficult for a unit to dissolve the labor contract, according to Article 25 of the Labor Law, if an employee’s performance is not satisfactory during probation.
Sub-Article 1 of Article 39 of the Labor Contract Law says, “If laborers are proven not to have satisfied the employment conditions during probation, the Unit is allowed to dissolve the labor contract.” Article 21 further regulates that “During the probation period, a Unit may not dissolve a labor contract unless there is evidence proving that the laborer meets any of the conditions specified in Article 39 or the first and second items of Article 40 of this Law. If a Unit dissolves a labor contract during the probation period, it shall explain the reasons to the laborer.”
 Compared with the Labor Law, this article intensifies the burden of proof for units. It also severely limits the units' right of dissolution. Compared with Labor Law, it is more important for the unit to perfect and detail the employment conditions with the implementation of the Labor Contract Law.

III. Lawyer Debate

Lack of one kidney does not constitute a “critical defect.”
Lawyer Ji Ming from Shanghai Bund Law Firm in support of the laborer

The unit is not allowed to dissolve the labor contract because Mr. Lin lacks one kidney.
First, although Mr. Lin concealed the truth when filling out the employment form, which is wrong, I think the unit should also take some responsibility. The unit has an obligation to verify information. After all, it is the unit which is recruiting employees. The unit did not perform its obligation and signed the labor contract with Mr. Lin. Then, the unit dissolved the contract. This is unreasonable.
Second, the unit regulation states that people with "critical defects" do not meet the employment conditions. Although Mr. Lin lacks one kidney, it does not impair his normal life or work life, so it does not belong to the category of "critical defect". The unit has no legal basis to dissolve the labor contract with Mr. Lin based on this particular reason.
Third, the bank dissolved the contract according to its internal regulations. The internal regulations of the bank are effective only when they comply fully with the law. Obviously, the bank's regulations do not comply with the law, and therefore, they are null and void. The decision to dissolve the labor contract according to company regulations is also null and void.

A contract signed fraudulently is invalid.
Lawyer Yan Dejun from Shanghai Jie Hua Law Firm in support of the unit

Regarding the disputed facts of this case, Mr. Lin filled in "healthy" on the personnel recruitment physical examination form without informing the unit of his lack of a kidney. It caused a misunderstanding. Such an action is spurious and fraudulent according to either Labor Law or Civil Law.
Second, in the banking industry, one deals with money every day. The employment standards of a bank should be higher than that of other professions, especially relating to the higher requirement for employees' physical condition, personal integrity and good faith. It is justifiable that, after knowing the truth, the unit dissolved the labor contract with someone like Mr. Lin who cheated on his application form.
Third, the bank signed the labor contract without knowing the whole truth. According to the Contract Law, this is a void labor contract because it was signed by cheating. The contract did not reflect the true declaration of will of the bank.
Fourth, the Temporary Regulation is the internal employment regulation of the bank. The law entitles the unit to independently employ laborers as well as the right of constituting employment regulations provided that the regulations do not conflict with the law. In this case, the provision stating that “the Unit will not employ laborers with critical defect” in the bank's regulations does not go against any law. So, it is legal.

IV. Final Judgment

The Labor Dispute Arbitration Committee thought that Mr. Lin did not inform the unit of his actual health condition. After knowing the truth, the bank decided to dissolve the labor contract during probation according to internal regulations, which was reasonable. Mr. Lin appealed to the Court against the judgment.
The Court ruled that although Mr. Lin is missing the right kidney, his physical condition is far from the “critical defect” standard according to medical legal expertise. Moreover, he is healthy enough to undertake the job assigned by the bank. Mr. Lin's physical condition satisfied the employment condition of "no severe sickness or defect." The claim that he has a "severe physical defect" is untenable. The Court reversed the bank's decision to dissolve the labor contract with the plaintiff and ordered the bank to continue to implement the original labor contract. After the Court trial, the bank appealed. The Court of Appeals confirmed the original ruling of the Court.

V. Expert Evaluation

The employment condition was not posted publicly, so the claim of fraud is unsustainable.
Professor Dong Baohua from East China University of Political Science and Law

This case mainly refers to the dissolution of a labor relationship during probation when the employment conditions are not satisfied.
The situations in which the unit is allowed to dissolve the labor contract with the laborer include mutual dissolution, fault dismissal, non-fault dismissal, economic staff reduction, etc. The unit bears the burden of proof for the decision to dissolve the labor contract. The Court or the Labor Dispute Arbitration Committee can repeal the unit's decision due to insufficient proof and can order the unit to compensate the laborers for any loss incurred due to the unfounded dismissal. In this case, the unit dissolved the labor contract with Mr. Lin because he was “proven to fail the employment conditions during probation.” So the key to this case is to verify whether he satisfied the “employment conditions.”
The Labor Law and related regulations have no definition of “employment conditions.” Generally, employment conditions are constituted independently by units, provided that the fundamental employment conditions are in full accordance with the law, for example the mandatory minimum employment age, along with education, technology, physical and character requirements of each occupation in the unit.
Regarding employment conditions, we should first refer to the statutory regulations, such as the prohibition of child labor and then refer to the agreement between the two parties when the law has no specific regulation. Concerning this case, we need to figure out how to understand the employment conditions detailed in the Temporary Regulation that new employees have to be “in good physical condition and without severe sickness and defect.”
First of all, Mr. Lin did not originally know of the existence of the Temporary Regulation. The bank did not explain clearly that if an applicant has only one kidney, this qualifies as “severe sickness or defect” and does not satisfy the employment conditions. Meanwhile, Mr. Lin participated in the personnel recruitment long after his recovery. As we can see, Mr. Lin did not cheat when signing the labor contract and the employment conditions cited do not apply to Mr. Lin.
Second, even if the employment conditions of the Temporary Regulation do apply to Mr. Lin, there are two ways to determine whether Mr. Lin satisfies the employment condition. On one hand, although a kidney was removed, Mr. Lin had functionally recovered. The medical testimony and the later testimony in Court provided by Mr. Lin prove both that he was healthy and that he had a normal working capacity. On the other hand, one kidney was removed, and this shows that his organs are imperfect; his body is abnormal and unhealthy. From these two perspectives, which one should be adopted? In this case, the Court and the Arbitration Committee have divergent opinions. The Arbitration Committee adopted the “missing organ equals physical defect” theory and ruled against Mr. Lin while the Court adopted the “physical function equals normal working capacity” theory and rules in favor of Mr. Lin.
Personally, I support the ruling of the Court. In judicial practice, when there are two ways of evaluating the facts, the Court should insist on safeguarding the validity of existing labor relationships in order to maintain social stability. In this case, the Court supported Mr. Lin's claim and maintained the validity of the original labor contract on the basis of the facts and the medical testimony. This is completely correct.

From LexisNexis