On The System Of Dismissal For "Incompetence" Of Workers

With the continuous development of the market economy,the market demand for talent is gradually increasing.At the same time,under the background of the epidemic,the relationship between employers and workers is becoming more and more complicated,enterprises are operating in difficulties and the conflicts between employers and employees are becoming more and more prominent.The current law provides for the rule of "incompetence",but does not clearly stipulate the determination of "incompetence",which has led to many disputes in its application."Incompetence" should mean the worker is unable to perform the duties of the job to which he or she is entitled.There is a distinction between "incompetence" and the final elimination,job failure and failure to meet the conditions of employment,and the theoretical doctrine that objective factors predominate over subjective ones is supported in the determination.Based on the empirical analysis,this article concludes that the system of "incompetent" dismissal has the following problems: firstly,the subject of determination is only the employer,which is too single;secondly,the factors of determination are mostly objective factors,which are too narrow,making it easy to make some cases of "incompetent" dismissal due to the worker’s subjective incompetence.Thirdly,the current distribution of the burden of proof for "incompetence" is unreasonable,at the same time the content of evidence in courts around the world is not uniform and standardised.Fourthly,the current dismissal procedures are too simple and the cost of dismissal is low,which gives the employer the opportunity to dismiss the worker at will;fifthly,the judiciary’s review of "incompetence" is not comprehensive enough and the scope is not uniform,which easily leads to different judgments in the same case.Drawing on the freedom of employment in the United States,the dismissal protection procedures in the UK and Germany and the compromise recognition criteria in Chinese Taiwan,we suggest the following improvements to address the issues.Firstly,the scope of the determination should be expanded to include multiple parties to evaluate "incompetence",so as to increase the authority and credibility of "incompetence" dismissal.Secondly,we should refer to the doctrine and practical experience of Chinese Taiwan and incorporate subjective factors into the system of determining "incompetence",so as to establish scientific criteria for the determination.At the same time,the content of the evidence required in cases of "incompetence" should be standardised and the burden of proof should be redistributed so that the employer bears the burden of proof for the legality of the termination of the employment contract and the worker bears the burden of proof for the violation of the termination of the employment contract,thus saving judicial resources and balancing the interests of both employers and employees.Once again,the "notice","statement" and "defence" procedures and the corresponding legal responsibilities should be added to strengthen the procedural restrictions on the "incompetence" system.This will strengthen the procedural restrictions on the "incompetence" system and restrain the employer’s right to dismiss.Finally,the scope of judicial review should be unified to minimise the occurrence of different judgments in the same case.Based on this,the series of controversial issues in the "incompetent" dismissal system should be clarified and corresponding suggestions for improvement should be made,which is conducive to building harmonious and good labour relations.