Affrimation And Disposition Of The Employee "Incompetent"

< Labor Contract Law > fortieth article(two)the provisions of the laborer in"incompetent" situation after the unit how to dispose of."The labor law and labor contract law > > and < for workers" incompetent "and did not give a clear definition,only in the original labor department issued documents do a simple explanation of"incompetent ".Therefore,in the judicial practice of workers identification of"incompetent "there have been some difficulties and disputes,also produced a different situation and confusion on the cognizance of" incompetent "after disposal.According to the judicial practice of the workers" incompetent "cognizance and disposal to analyze,the core content isThe establishment of the standard of"incompetent"First of all,around this problem,this paper reviews the existing academic works and papers,combined with relevant cases in the judicial practice of research and analysis.The author explains the connotation of "incompetent",to sort out the "reason and theory cannot be competent",such as the objective,subjective and objective to establish both said.The workers "incompetent" recognized the necessity of the standard are described.The establishment of "incompetent" recognizes the necessity analysis of the standard.And respond to the scholars about the employee "incompetent" in the legislation of some questions,put forward their views and resolution proposal.Analysis and "incompetent" confusing does not meet the recruitment conditions,their mistakes and errors,established to lay the foundation for the standard of laborers "incompetent".Secondly,the author reviews and analysis of the related problems in identification of workers "incompetent" situation in the actual work,and then put forward the specific content of the standard.For some scholars questioned "incompetent" feasible and effective after the identification of disposal by the response,such as "incompetent" on this issue with the burden of proof the unit is heavy work measurement of workers,and put forward his own opinion.In judicialpractice,the workers identified as "incompetent" of the performance evaluation unit requests,from the performance appraisal content,making methods and processes were analyzed and expounded,In order to establish "incompetent" reference standard.In addition,the employer made in the judicial practice of the regulations will be as "incompetent" workers work on the basis of these,the content related to the labor contract and can continue to fulfill the interests of workers,the employer in the formulation according to the the procedures prescribed by law,joint consultation with the workers in the procedure,the content must comply with the law,and do bad to the worker's rights.The employer made about the workload or requirements of the content in the content complies with the law of the case,also can be used to determine whether the workers "incompetent" basis.Finally,was identified in the employee is incompetent after the employer's disposal methods are analyzed in detail.Responding to the question of whether the employer transferred to "incompetent" sense.For training and post is the law to require the employer to avoid dismissal make the effort,so even if the law does not expressly,but certain principles and potential requirements of training or job transfer training should comply with.Are required to improve working ability,and adjust the position to be in a reasonable range,no more than a person can tolerate,and the workers during training and adjustment the wages of postIf the legitimate measures discussed.After the employer,the employer of workers is still legal proof as "incompetent",the employer could disslove the labor contract law.But this time the employer still need to obey the law,terminate the labor contract in the process still need according to certain legal procedures,and pay economic compensation to the worker.And not in violation of the law on the prohibition of dismissal.