A Study On The Issue Of Identifying "Labor Cannot Be Competent For Work" To Cancel A Labor Contract

Article 40 of the Labor Contract Law enumerates various situations in which an employer exercises unilateral right of termination.Paragraph 2 of this article deals with workers being “incompetent for work”.However,there is no specific explanation of“incompetence” in the “Labor Law” and “Labor Contract Law”,so it is inevitable that there will be difficulties and disputes in the determination of this standard in judicial practice.There is also ambiguity and controversy in the disposition of “competence”.This article analyzes the situation of workers being “incompetent” in judicial practice,and mainly discusses the definition and establishment of the “incompetent” identification standards.Based on the current academic viewpoints,the practical practices of employers and the ruling points of nearly 60 adjudication documents,this article believes that the current“incompetence” judgment has aroused the following confusion in judicial practice: 1.The identification standard of “incompetence” should be classified as subjective factors or not.2.Employers who serve as the single identified subject have caused the abuse of the right of dissolution;3.Employers' proof is overburdened and the content is not standardized.In response to the above confusion,suggestions are made from the following three “changes”:1.the change from a single objective factor to the consideration of subjective factors;2.the change from a single recognized subject to multiple recognized subjects;3.the change from the burden of a single proof to the burden from both parties.In short,to determine whether a worker is “incompetent for work” truly and accurately,employers and workers each must perform their own responsibilities in addition to perfecting and supplementing the legislative determination of “incompetent for work”.In the process of identification,it is necessary to expand the “subjective” cause of the workers.It is also necessary for the employer to negotiate with the workers fairly on the basis ofadhering to the principle of balance between labor and capital as well as establishing corresponding identification standards such as internal labor rules and regulations.All these can finally explain the compliance of the “competent” worker,thus to achieve a win-win situation for both employers and workers.