Empirical Research On The Dismissal Of “Incompetence”

The labor contract law imposes strict statutory restrictions on the reasons for dismissal of employers.As for "incompetent" dismissal,due to the natural defects of uncertain concept and inconsistent standards,its semantic fuzziness has buried hidden dangers for many puzzles in judicial practice.Through the empirical investigation of the judicial documents in Jiangsu Province in recent five years,this paper finds that there is an obvious inequality in the judicial trial of "incompetent" Dismissal: there are only a few cases identified as legal dismissal.The reasons can be analyzed from two dimensions: the employer and the referee: the employer has the problems of deviation in the understanding of the substantive elements of the clause,lack of evidence consciousness and single identification subject;When reviewing the relevant logical elements,such as performance appraisal,competency standards,the rationality of job transfer or training,the court is faced with the embarrassing situation of different judgments in the same case.In order to solve the existing difficulties,employers should accurately understand the essence of the terms,strengthen the awareness of evidence,introduce the evaluation system of employees and experts to expand the identification subject of "incompetence",and give more play to the role of trade unions in the identification of workers’ competence.From the perspective of judicial judgment,the court should follow the endogenous logic of "incompetent" dismissal,and build a relatively clear judicial review standard for the identification of performance appraisal,competency standard and final means of dismissal,so as to alleviate the contradiction of different judgment scales in practice;At the same time,the principle of proportionality and the rule of prohibiting adverse change can be used to limit the judge’s discretion.The high losing rate of "last elimination" in practice does not mean that "last elimination" should be abolished,but the termination of labor contract on the grounds of "being last" does not meet the legal conditions for termination.In order to solve the dilemma of the fault between "last elimination" and "incompetence",we should return the "last elimination" to the original framework of incompetence dismissal,and explore two integration paths of static and dynamic:(1)static integration path.First,the "last" should be limited to the "last and incompetent" situation;Second,"elimination" can be understood in a broad sense;Third,the formulation of "last elimination" must meet the mandatory requirements of procedures.(2)Dynamic fusion path.First,take "being at the bottom" as the precondition for judging "incompetence";The second is to introduce the "standard line elimination system" for potential "incompetent" workers.