A Report On T Labor Relations In WuHan's Express Service Industry

Article 40 of the labor contract law of China clearly stipulates three cases of non-fault dismissal,among which the "incompetent" clause has aroused hot discussion in the academic and practical circles.According to relevant laws and regulations,the staff after the first identified as insufficient ability,can't immediately dismissed,but should take the duty or mitigation measures such as training,but for the cognizance of "incompetent" rules did not give the exact definition,only in the original labor department released document gives a rough explanation,so in practice about how to found controversial employee ability is not enough.The interpretation and study of "incompetent" not only relates to the employment rights of laborer,is also about the firing of the employing unit,it can promote the establishment of harmonious labor relations,and to perfect our country's forecast dismissal system has important theoretical significance,so the more specific and detailed,operational standards call for theory and practice.Original labor ministry is in the file that issues to "cannot be competent" made simple limit,cannot complete the task that agrees in labor contract by the requirement namely or the workload of personnel of the same type of work,same post,unit of choose and employ persons must not raise norm standard intentionally,make laborer cannot complete.However,this definition does not give a clear response to whether subjective factors can be included in the determination of employees' inadequacy.About "incompetent" in South Korea,Taiwan area don't have a clear and specific standards,can only be maintained through relevant theory and case explanation,and through to the China and South Korea "incompetent" that the comparison of rules,while South Korea has certain reference value,but on the whole of our country on the cognizance of "incompetent" law is more clear,relevant cognizance rules more strictly,to the limits of right to unit of choose and employ persons to fire intensity bigger,more conducive toprotecting the legal rights and interests of labourers,maintaining harmonious and stable labor relations.At present,the theoretical and practical circles in China have also discussed this issue to some extent.From a comprehensive perspective,there are mainly three types of theories: objective theory,subjective theory and subjective and objective theory.At present,China's legislation in the "incompetent" to the identification of the adoption of an objective view.However,due to the lag of law,it can't keep up with the progress of social development,so it can't meet the needs of practice to use only objective standards.Therefore,there are many disputes in the judicial practice: 1.The diversity and inconsistency of the identification basis lead to too much flexibility in determining whether the workers are competent for the job,which brings a lot of difficulties to the trial of the court;2.Whether the subjective factors should be included in the determination of the insufficient ability of employees.If they are not introduced,it may hinder the employer from exercising the right to work and lead to the waste of social resources;3.The identified pre-procedure,namely training and post transfer,may become a mere formality and indirectly become a tool for the enterprise to abuse the right to dismiss.In view of the problems in legislative and judicial practice,we should seek corresponding solutions from these two aspects.From the perspective of legislation,the reasons for employees' inadequacy include both objective causes and subjective faults.From the perspective of judicatory level,we can start from the identification basis,identification standard and post-identification procedure(pre-release procedure),comprehensively consider and determine the identification standard from the identification basis,and investigate whether the training or post transfer obligation after the performance of "incompetent" is reasonable.From legislation to judicature,we should aim at establishing harmonious labor relations and give consideration to the legitimaterights and interests of both employers and workers.