Viewpoint | Analysis of Workers Not Competent for Work
Published:
2022-12-13
Item (II) of Article 40 of the Labor contract Law stipulates that if a worker is not competent for the job and is still not competent for the job after training or adjustment of his post, the employer may terminate the labor contract. Meaning of "1. not competent for the job" Article 26 of the "Explanation on Several Provisions of the" the People's Republic of China Labor Law "of the former General Office of the Ministry of Labor (Labor Office No. 289 [1994]) defines" incompetent work ":" Incompetent work "in item (II) of this article refers to the inability to complete the tasks agreed in the labor contract or the workload of the same type of work and personnel in the same position as required. The employer shall not deliberately raise the quota standard so that the worker cannot complete it. It can be seen from this that when the employer and the employee have agreed on the work content and performance appraisal standards, they will be performed in accordance with the agreed content; if not, they will be implemented in accordance with the standards that most employees in the same position can generally reach. It is the autonomy of the employer to adjust the job position under the situation of "incompetent work" in the 2.. According to the provisions of Article 19 of the Labor Law and Article 35 of the Labor Contract Law, in the labor contract, the work content, working conditions, labor remuneration, etc. are the main items agreed upon by the employer and the employee in the labor contract. If changes are required, the employer and the worker shall reach a consensus through consultation and in written form. Therefore, a reasonable reduction to new posts should generally meet the following conditions at the same time: the employer has the legal basis for adjusting the post and has informed the workers of their rights and obligations; Both parties have the agreement to change the post: it should not be insulting and punitive. The identification of 3. "incompetent for the job" has nothing to do with whether they have professional qualification certificates. Professional qualification is the basic requirement of knowledge, technology and ability necessary for a career. Professional qualifications include qualifications and qualifications. Qualification refers to the starting point standard for the knowledge, technology and ability of a certain profession (type of work). Practicing qualification refers to the government's access control of certain professions (types of work) that have greater responsibilities, strong social versatility, and public interests. It is the knowledge, technology and ability to independently start business or engage in a specific profession (type of work) in accordance with the law. A necessary standard. Therefore, having obtained relevant qualifications for employment and access does not mean being competent for the job. Having relevant qualifications and being competent for the job are different concepts. Determination of Dissolution of Labor Contract in the Case of "Incompetent Work" of 4. The employer terminates the labor contract under the circumstances of Article 40 of the Labor contract Law, which not only has procedural provisions, but also requires the worker to be "incompetent for the job. In terms of procedures, three procedures should generally be performed in strict accordance with the order before the employer can terminate the labor contract: one is the identification of the worker's incompetence for the job; the other is the training or adjustment of the job position; the third is still incompetent for the job. Among the three procedures, the identification of workers incompetent for the job is not only the key procedure, but also the key in the entity identification. In the practice of adjudication, the determination of illegal dismissal is mainly based on the following aspects: first, whether the employer has an agreement on the job responsibilities or job contents of both parties in the labor relationship; second, there are specific criteria and regulations for assessment of job responsibilities and job contents; third, whether the assessment criteria or regulations for job contents or job responsibilities are reasonable in terms of possibility and periodicity; Fourth, whether the employer has performed the job transfer or training procedures, and whether the training content provided by the employer is professional training, regular training or induction training: it should be specially pointed out that the training at this time should be on-the-job training for "incompetent work"; Fifth, whether the employer's termination of the labor contract belongs to the situation that Article 42 of the Labor Contract Law shall not terminate the labor contract on the grounds of incompetence.
Item (II) of Article 40 of the Labor contract Law stipulates that if a worker is not competent for the job and is still not competent for the job after training or adjustment of his post, the employer may terminate the labor contract.
Meaning of "1. not competent for the job"
Article 26 of the "Explanation on Several Provisions of the" the People's Republic of China Labor Law "of the former General Office of the Ministry of Labor (Labor Office No. 289 [1994]) defines" incompetent work ":" Incompetent work "in item (II) of this article refers to the inability to complete the tasks agreed in the labor contract or the workload of the same type of work and personnel in the same position as required. The employer shall not deliberately raise the quota standard so that the worker cannot complete it. It can be seen from this that when the employer and the employee have agreed on the work content and performance appraisal standards, they will be performed in accordance with the agreed content; if not, they will be implemented in accordance with the standards that most employees in the same position can generally reach.
It is the autonomy of the employer to adjust the job position under the situation of "incompetent work" in the 2..
According to the provisions of Article 19 of the Labor Law and Article 35 of the Labor Contract Law, in the labor contract, the work content, working conditions, labor remuneration, etc. are the main items agreed upon by the employer and the employee in the labor contract. If changes are required, the employer and the worker shall reach a consensus through consultation and in written form. Therefore, a reasonable reduction to new posts should generally meet the following conditions at the same time: the employer has the legal basis for adjusting the post and has informed the workers of their rights and obligations; Both parties have the agreement to change the post: it should not be insulting and punitive.
The identification of 3. "incompetent for the job" has nothing to do with whether they have professional qualification certificates.
Professional qualification is the basic requirement of knowledge, technology and ability necessary for a career. Professional qualifications include qualifications and qualifications. Qualification refers to the starting point standard for the knowledge, technology and ability of a certain profession (type of work). Practicing qualification refers to the government's access control of certain professions (types of work) that have greater responsibilities, strong social versatility, and public interests. It is the knowledge, technology and ability to independently start business or engage in a specific profession (type of work) in accordance with the law. A necessary standard. Therefore, having obtained relevant qualifications for employment and access does not mean being competent for the job. Having relevant qualifications and being competent for the job are different concepts.
Determination of Dissolution of Labor Contract in the Case of "Incompetent Work" of 4.
The employer terminates the labor contract under the circumstances of Article 40 of the Labor contract Law, which not only has procedural provisions, but also requires the worker to be "incompetent for the job. In terms of procedures, three procedures should generally be performed in strict accordance with the order before the employer can terminate the labor contract: one is the identification of the worker's incompetence for the job; the other is the training or adjustment of the job position; the third is still incompetent for the job. Among the three procedures, the identification of workers incompetent for the job is not only the key procedure, but also the key in the entity identification. In the practice of adjudication, the determination of illegal dismissal is mainly based on the following aspects: first, whether the employer has an agreement on the job responsibilities or job contents of both parties in the labor relationship; second, there are specific criteria and regulations for assessment of job responsibilities and job contents; third, whether the assessment criteria or regulations for job contents or job responsibilities are reasonable in terms of possibility and periodicity; Fourth, whether the employer has performed the job transfer or training procedures, and whether the training content provided by the employer is professional training, regular training or induction training: it should be specially pointed out that the training at this time should be on-the-job training for "incompetent work"; Fifth, whether the employer's termination of the labor contract belongs to the situation that Article 42 of the Labor Contract Law shall not terminate the labor contract on the grounds of incompetence.
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