Judicial Application of the"Incompetence"Clause:From the Perspective of 40(2)of the Labor Contract Law
In the empirical investigation of"incompetence"termination cases in judicial practice,there has been a dilemma due to the vague concept of the"incompetence"clause and inconsistent judicial identification standards,which leads to the imbalance between the protection of workers'rights and the exercise of the employer's dismissal right.In this regard,it is necessary to define the concept of"incompetence"by legislative means to eliminate ambiguity.At the same time,in the practice of adjudication,the judicial organs cannot mechanically apply the"incompetence"clause.Specifically,the judicial organs should adhere to an objective position and avoid taking subjective factors as the leading basis;With legality and rationality as the identification standard,the appraisal system of employers should be strictly reviewed to prevent them from abusing the right of dismissal.The training and position transfer of"incompetent"workers shall be identified according to whether they are targeted and reasonable,so that these remedial measures can promote the improvement of workers'ability or position adaptation,thereby balancing the relationship between the protection of workers'rights and interests and the management autonomy of employers.
"incompetence"clauseLabor Contract Lawlabor terminationidentification standard
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