The Correct Position Of The Employer To Terminate The Labor Contract

In dismissing old employees or recruiting new employees, employers need to pay attention to some legal problems to prevent them from being unfamiliar with the labor contract law or not fully understand them, so that they can go to arbitration or litigation.

A mechanical design company has recruited several newly graduated college students and signed a labor contract with a trial period of 3 months.

Due to lack of experience and new recruits, several new employees occasionally make minor mistakes during their probation.

Therefore, the mechanical design company dismissals all the new employees on the grounds that they do not meet the recruitment requirements and are not competent for the job.

Dismissed employees, therefore, labor arbitration.

After the verdict was made, the machinery design company refused to accept the case and complained to the court. Because the company could not provide evidence to prove that the staff did not meet the recruitment requirements, the court finally rejected the company's claim.

From China

According to the thirty-ninth provision, "the employer may rescind the labor contract if one of the following circumstances occurs: (1) during the probation period, it is proved that it does not conform to the employment conditions."

However, according to the principle of "who advocates and who gives evidence" in China's civil procedure law, when employing units do not conform to the employment conditions and dissolve the labor contracts, they need to provide sufficient evidence to prove that the workers are not in line with the employment conditions, and that there is no evidence relevant to the employment conditions which are not compatible with the employment conditions.

Some employers consider the probation period to be an inspection.

In the process of performance and capability, if the employer is not satisfied with the laborers who are in probation period, they can terminate the labor contract with the workers at any time.

This is especially helpful for employers to provide sufficient evidence to support your proposal when you terminate the labor contract with a probationary employee.

Lu Mou engaged in sales work in a company. At the end of the year, Lu's sales were lower than the company's internal regulations.

As a result, a company asked Lu to dissolve the labor contract on the ground that it violated the company's internal sales regulations.

Lu said that he had been working hard, and no one mentioned to him that the company had the minimum sales regulation requirements at the end of the year, and the minimum sales had not been stipulated in previous years.

Therefore, Lu Mou does not agree to terminate the labor contract.

after

After that, both sides entered the proceedings.

Because a company can not provide evidence to prove that the internal provisions of the minimum sales have been informed to employees, it can not prove that the above provisions have been publicized inside the company, so the court has decided that a company has lost the lawsuit.

That is to say, it is stipulated in the internal rules and regulations of the units that if the formulation of rules and regulations fails to carry out democratic procedures and publicity, that is, without the discussion of all staff members, without equal consultation with the staff representatives, and without making public notice to the workers in the company's internal public places or failing to inform the workers, the rescission act based on the internal provisions can still be regarded as illegal.

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1. What is "incompetent work"? The twenty-sixth article and second paragraph of the "labor law" statement (labor office issued [1994]289) clearly stipulates that "incompetence" means that the workload stipulated in the labor contract can not be fulfilled according to the requirements, or the workload of the same type of workers or workers in the same position.

The employer shall not deliberately raise the quota standard so that the worker can not finish it. "

The purpose of signing a labor contract between the employer and the laborer is to obtain the labor provided by the laborer. If the laborer fails to complete the tasks stipulated in the labor contract in accordance with the requirements of the employer due to his own reasons, the original intention of the employer can not be realized.

Therefore, the law gives employers the right to terminate labor contracts with workers on the grounds of "incompetence" in compliance with the requirements of the law.

Two, qualitative analysis of low efficiency.

If the laborer does not exist subjective intent or malice, then the low efficiency should not be regarded as a waste of work, but should be regarded as a worker's incompetence.

Three. Why does a company's dissolution of a labor contract be identified as an illegal termination? The fortieth clause of the labor contract law stipulates: "if one of the following situations occurs, the employer will notify the worker himself in writing thirty days in advance, or pay the laborer one additional month to pay the labor contract.

(two) labourers are not competent for their jobs. After training or adjustment of jobs, they are still not competent. "

Therefore, the labor contract law has conditional and legal procedures for the unit to terminate the labor contract because the worker is "incompetent".

That is to say, laborers are not competent at first, but the employer can not terminate the labor contract immediately. After that, the unit must train or adjust the post. After this legal procedure, if the worker is still unable to work, the unit will be able to terminate the labor contract.

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