Research On The Judgment And Judicial Application Of Dismissal Of "Incompetent Work"

Dismissal is not only a manifestation of the employer ’ s autonomy in employment,but also affects the stability of the workers ’ lives and is the most critical part of the labor relationship."Incompetence for work" as a cause of no-fault dismissal is stipulated in Article 26 of China’s "Labor Law" and Article 40 of "Labor Contract Law".However,because the legislative provisions are too vague,it does not deal with "incompetence for work"."",and the only documents that can be found are the "Explanation on Certain Articles of the Labor Law" issued by the General Office of the Ministry of Labor in 1994.The document only briefly mentions "Incompetent"Work" has been explained,which has caused constant controversy in the field of practice and theory over the issue of identification standards,and the identification of protection measures for dismissal after being deemed "incompetent" for the first time has also fallen into a dilemma.According to certain conditions,the article sorts out100 judicial judgment cases of “ unqualified job ” dismissal in Shanghai,and analyzes them,revealing the plight of this clause in judicial practice.The article is composed of three chapters: the overview of the first chapter "incompetent job",the second chapter the judicial empirical analysis of "incompetent job" dismissal in Shanghai area,and the third chapter "incompetent job" dismissal judicial application recommendations.Research on the judicial application of the "incompetent job" dismissal clause will not only help improve my country’s dismissal protection system,but also protect labor rights and enterprise employment autonomy,so as to reduce the pressure of judicial subjects when applying this clause to resolve labor disputes.This article combines relevant doctrines and judgment opinions in judicial practice,advocating that “Objectively impossible” as the standard for determining that workers are incompetent for work,and clarifying the standard for determining the effectiveness of job transfer and training will help the clause to get rid of the application dilemma.While the employment of labor is stable,the employer’s labor autonomy is guaranteed to achieve a win-win situation for both employers and employees.In order to protect the employer ’ s autonomy in employment,an effective system foundation can be established in accordance with the law,while at the same time strengthening the understanding of the law,raising legal awareness,and regulating its own behavior.When reviewing incompetent labor disputes,the judiciary should first clarify the litigation claims of the parties and conduct a comprehensive review in accordance with the law.First,review the criteria for determining that the employer is incompetent,and second,review the pertinence and effectiveness of the training behavior.The rationality of the job transfer behavior,and the final review of the legality of the two determinations of incompetence.