Research On Legal Issues Concerning Workers' Incompetency In Work

The provisions of the Labour code concerning incompetency are contained in article 26,paragraph 2,of the Labour code and article 40,paragraph 2,of the Labour contract law.Both sets its regulation to be a kind of legal circumstance that unit of choose and employ persons removes unilaterally notice only,namely when unit of choose and employ persons has authority to be in laborer not competent when the job,can give a month's notice to laborer ahead of schedule or after paying a month salary,remove labor contract with unqualified job on the ground.But the regulation is broad and vague,did not elaborate what is not competent to work,not competent to work what to decide a standard to wait,in practice should carry medium measure differ,dispute is very big.Focusing on this issue,this paper has read a large number of relevant literature and consulted a large number of judicial cases.Finally,start from the case and take a case into consideration to analyze the reason why the employer was found to have broken the law by the court in the case and bring out the topic to be considered in this paper.Then,based on the judgment documents in various regions of China in 2018,the paper summarizes the difficulties faced by the incompetent work in judicial practice and operation,and analyzes the reasons why the employer may lose in labor contract termination due to the incompetent work.By analyzing specific cases and summarizing and integrating the cases,the paper concludes the problems existing in the current rules and regulations on the identification of employers' unqualified work,and puts forward the improvement paths for the identification of employers' unqualified work.At the same time,the paper puts forward the improvement path for the determination of the unqualified work by the court in case judgment from the aspect of the investigation of the determination of the unqualified work by the court.In view of the plight of unqualified work,this paper proposes solutions from three aspects: legislative improvement,collective consultation system improvement,and individual judgment improvement.Firstly,the scope of application should be adjusted to establish an exemption system for small and micro enterprises.Secondly,the labor quota system should be improved to reasonably set the labor quota.Thirdly,the standard line elimination system should be set to replace the elimination system at the end.However,all of these belong to the category of collective consultation,that is,to improve relevant policies,and to realize the value that labor law seeks.Followed by perfecting the system of collective consultation,writer never do work as a series of process,to the laborer does not terminate the labor contract for job,should be set up in advance a set of standards,set up standards,the need to set up a performance appraisal system,according to the rules and regulations established by the standard,will need to be clear to achieve the goal of the performance appraisal,and completes the inspection records,to fix the process.Finally have shall be set up in advance of the target,practical performance appraisal result,also need to determine in its goal and actual,to what degree did not finish the work as a laborer is not competent,measure unit of choose and employ persons and laborer interests,interests balance,more perfect is not competent for the work of the results.Finally,starting from the path of improving the individual judgment,first of all,the subjective mentality of workers should be brought into the scope of investigation,and then the principle of "inclined protection" should be reasonably applied.The parts that cannot be solved by legislation or collective consultation shall be put under the jurisdiction of individual cases,and shall be as clear as possible in individual cases.