Recognition And Dismissal Protection Of "Incompetent"

As a measure of dismissal protection,employers can unilaterally dismiss workers.Labor "incompetence" is stipulated in the Labor Law and the Labor Contract Law,but its provisions are vague,especially how to determine whether workers are qualified for work has always been a hot topic in academic circles.China's laws and relevant normative documents do not specify the specific criteria for determining the incompetence of workers.Only the documents issued by the former Ministry of Labor(Notes on Several Provisions of the Labor Law)simply define the incompetence of workers,which leads to the recognition of the incompetence of workers in judicial practice.Some difficulties and disputes have arisen,and many puzzles and disputes have arisen due to different understandings of the disposal after the recognition of "incompetence".This article analyses the identification and dismissal protection of workers 'incompetence in judicial practice,and refines and perfects the identification index of workers' incompetence.Firstly,by sorting out the relevant academic works and papers,the article combs the relevant theories of "incompetent work",such as "objectivity can not say,objectivity and subjectivity can not say,compromise theory",so as to summarize the views of scholars on "incompetent work" of workers at this stage.By using different explanatory methods,the basic principles and criteria for determining "incompetent work" are clarified that the incompetent work caused by objective reasons is incompetent.Secondly,through the analysis of 105 judgments collected,it can be concluded that the court at this stage is more strict about the determination of workers' incompetence to work.Among them,88 cases,accounting for about 84%,have been found by the court that the employer belongs to the illegal termination of the labor contract.The main reasons why workers are not recognized as "incompetent for work" are lack of factual basis and insufficient evidence;the employing unit has not trained or transferred the workers;the employing unit has unreasonable or inappropriate training methods for the workers;the employing unit has not fulfilled the procedures for informing the trade union;the duties of the post or the detailed rules for assessment.Failure to serve,inform workers,etc.Although the court's standard of determination in the trial of cases is relatively strict,in practice,because of the ambiguity of the standard,there will still be problems such as the single subject of determination and the abuse of dismissal right.Finally,the article combines the relevant cases to distinguish the confusing concepts with "incompetent work",such as "last elimination","work failure" and "passive idle work",and clarifies their judicial differences.Thirdly,the article combines the reasons for the court to decide that the employer has terminated the labor contract illegally and the problems reflected in the laborer's "incompetent work" determination standard in practice,and constructs the laborer's "incompetent work" determination from different aspects.Firstly,it clarifies that the identification criteria can not contain subjective factors and improves Article 39 of the Labor Contract Law.Secondly,it combines cases to improve the judicial identification system of dismissal of "incompetent work" from both substantive and procedural perspectives,that is,the results of performance appraisal are true,the contents are reasonable and legal,and the results of the appraisal are workers.Finally,combining with the problems reflected in practice,the author expands the identification subject of "incompetent work" of laborers and makes a reasonable refinement of the notice period of dismissal.Finally,the article explores the legal basis of the protection of "incompetent work" dismissal,and analyses its internal logic with the employer's freedom of operation,thus arriving at the conclusion that the two are not completely opposed,that is,the existence of the two is to seek an appropriate balance between the staggered and opposing employers and the overall interests of the society.From the perspective of comparative law,the article then analyses the relevant foreign legislative provisions on the dismissal of "incompetent work",and finds that China's provisions are relatively stringent on the whole,but the specific details are more extensive.On the basis of theoretical research and comparative analysis,the article combines with cases to elaborate the two types of dismissal protection measures of "incompetent work"-training and post adjustment from the aspects of which rescue measures are appropriate,whether there is time limit,whether the post adjustment is reasonable,and whether the training content is appropriate.