Research On The Dismissal Clause Of Incompetence

The dismissal clause of incompetence is stipulated in Article 40,Item 2 of the Labor Contract Law.However,due to the lack of specific explanations,this clause has aroused controversy in terms of its application in judicial practice,which has seriously affected the legitimate interests of labor party and capital party.On the basis of case study,it clarifies the problems of such clause as follows: 1.unclear related concepts;2.unclear distribution of rights and obligations;3.problems in the litigation process.To correctly comprehend the connotation of related concepts,it is necessary to construct a legal understanding of the dismissal clause of incompetence.It takes the statutory right of termination of the contract as legal basis,and it is amended by the protection against dismissal.Thus,the essence of “be incompetent to work” is a breach of the labor contract by incomplete performance.In content,subjective and objective factors should be taken into consideration for defining the concept.In extent,it should seriously affect the realization of the employer’s labor contract objectives.As means of realizing protection against dismissal,the “training or position adjustment” for workers should be able to improve labor conditions and maintain labor relations.The behavior of dismissal involves the conflict between the employer’s decisionmaking power and the labor’s right to secure employment.To balance the interests of both parties,it is necessary to confirm that the employer has the right to evaluate,transfer,train and dismiss.On the other hand,it should impose some restrictions on the exercise of the above-mentioned decision-making power.When the dismissal clause of incompetence is applied in the litigation procedure,it should clarify that the employer’s burden of proof for the legality of the dismissal is the result of the distribution of the burden of proof.In addition,the content of the proof includes the substantive and procedural requirements for the legal dismissal,and the proof standard should be highly probabilistic.Furthermore,it should confirm that in litigation procedures,it is necessary to adhere to procedural justice,which means the supervisory of the labor union should be strengthened and subsequent amendments of notice should be prohibited.