On The Dismissal Rules Of "Incompetent" Workers

The "incompetent" dismissal rule is of great significance to the protection of laborers' right to work,and the determination of "incompetent" directly determines the exercise of employers' right to dismiss.However,the "incompetent" dismissal rules always have problems such as single identification subject and difficulty in determining the competency standard.Although China's current law has made corresponding provisions on "laborers are not competent for their jobs",there are many problems in judicial practice due to its vague concept and poor legal applicability.As a result,the "incompetent" dismissal rules for the controversy has been going on,the doctrine forest.Notably the objective cannot speak and objective and subjective can't say for the mainstream,the objective and can't say the researchers on the basis of system interpretation and direct interpretation,think "incompetent" that should be the before and after the provisions and legislation,but the objective and subjective cannot say the researchers,from the perspective of laborer,thought to be able to incorporate the subjective reason to the cognizance of "incompetent".At the same time,since "incompetent" is not the same as the last elimination system,and there is a subtle relationship between "incompetent" and the concepts such as unqualified employment conditions and labor mistakes,it is also necessary to further clarify the post transfer training as the basic requirements of the preliminary procedures of "incompetent" dismissal.Specifically,in judicial practice,the problem caused by "incompetent" dismissal lies in the unbalanced protection of the rights and interests of the employer and the employee,the employer's difficulty in providing evidence and a series of other problems,making it a saying that "incompetent dismissal rule" is dead in practice.It is difficult for the employing unit to reasonably terminate the labor contract with the laborer on the basis of "incompetence" or directly apply the termination of discipline violation to avoid the extremely high risk of losing the lawsuit;At the same time,due to the employer's difficulty in proving "incompetent",the laborer also faces the risk of the employer's abuse of the right to dismiss.Therefore,on the basis of insisting on the balance of labor and capital interests,it is necessary to include subjective causes into the determination of "incompetent".Through the analysis of the requirements of acceptability and definiteness for the recognition standard between the employer and the laborer,the author points out the specific measures to specify the recognition degree.On that subject,in addition to emphasize the rationality of the expansion as the main body,should strive to improve the system of fire forecast period and post training system of supporting measures,will be in the human resources management of the specific measures for the training of selection part of its rationality into to "incompetent" firing rules,in order to realize the perfect "incompetent" the goal of firing rules,achieve a win-win situation of unit of choose and employ persons and laborer.