| The incompetence of the workers is one of the legal situations in which the employer obtains the right of dismissal.The precise determination of the incompetence of workers not only helps to guide the employer to exercise the right of dismissal legally,but also helps the adjudicators judge according to law and implement fairness and justice in specific cases.However,regarding the incompetence of workers,the current law only stipulates the legal consequences,that is,the employer has the right to dismiss the workers who are still incapable of working after transfer and training,but the boundary of incompetence of workers is not clearly set.The determination of the incompetence of workers is mainly found in Article 26 of the ”Instructions of the Ministry of Labor on Several Articles of the Labor Law of the People’s Republic of China” and Guiding Case No.18.The former believes that the incompetence of workers includes: the workers fail to complete the tasks in accordance with the labor contract;the workers fail to complete the tasks equivalent to those of the same job type or position.The latter points out that it should not be regarded as the incompetence of the workers that the performance appraisal is at the bottom.However,there are still many shortcomings in the above-mentioned determination rules.What is the meaning of incompetence of the workers ? How should we determine that workers are not competent for work? The current determination rules are difficult to give a clear explanation on it.In addition,under the background of advocating the introduction of empirical analysis to reform the legal research paradigm,in December 2016,Professor Dong Baohua deliver a speech on the theme of "Conflict and Coordination between Litigation and Performance appraisal from the Perspective of Big Data".According to this research,when applying the dismissal rule to judge the legality of the employer’s dismissal,most judges tend to make the judgment that the employer’s dismissal is illegal,which makes the dismissal rule almost only an empty title.Under the influence of this research,the labor law scholars begin to carry on the empirical research about the dismissal rule successively.However,most empirical research results are limited to explore the relationship between incompetent identification and the legitimacy of employer dismissal behavior,but lack of detailed investigation on the rules of identification of the incompetence of the workers.In view of the ambiguity of the current identification rules and the limitations of related empirical research,this article believes that in order to standardize the identification process of workers ’incompetence and protect the legitimate rights and interests of workers and employers,it is necessary to examine both parties of the labor relationship and the court in the status of the implementation of the current certification rules.Therefore,this article takes the empirical analysis method as the main research method,randomly selects 100 judgment documents about dismissal disputes because of incompetence of the workers,analyzes and processes the information feedback from the research samples.In addition to the introduction and conclusion,this article is divided into three parts:The first part is about the basic rules of the determination of the incompetence of the workers and it’s current implementation status.First of all,this part introduces the basic rules of the identification of incompetence of the workers,including the legislative overview and the guidance cases;Secondly,the empirical analysis method is used to investigate the current status of the implementation of the rules of the determination of the incompetence of the workers,including the understanding of both parties to the determination rules,the application of the determination rules on the people’s courts.The second part is about the dilemma revealing that the workers are not qualified for the work.This part is mainly based on the empirical investigation conclusions of the first part,combined with theoretical disputes,to reveal the two major dilemmas of incompetent work identification.The first is that the rules of the determination of the incompetence of the workers are ambiguous,mainly manifested as failure to distinguish the standards for the reasons for incompetent work,the failure to clarify the standards of conduct for incompetent work,and the failure to cover other work basis for the determination of incompetent work.Second,the people ’s courts are neglecting to exercise discretion.This trial will make it difficult to exercise judicial power,violate the dismissal protection system,and are not conducive to standardizing the management rights of employers.The third part is about the perfect suggestions about workers’ incompetence for work.On the basis of fully revealing the current incompetent work determination dilemma,this part puts forward three aspects of perfection suggestions based on thelabor legal rationality.First of all,a system for the identification of workers who are not competent for work should be established,that is,the identification standards and procedures for identification of incompetent work should be clarified using the "labor policy + judicial interpretation" model;Secondly,the specific standards for the identification of the incompetent work of the workers should be clarified,that is,the identification standards for the incompetent work are defined as the cause standard,the behavior standard and the work standard;Finally,the judicial procedures for the determination of workers ’incompetent work should be improved,that is,to strengthen the court ’s understanding of the importance of the exercise of discretion in the process of determining incompetent work,and unify the scope of the court ’s review of evidence for the determination of incompetent work. |
