What are the criteria for identifying employees as incompetent?
Author | Wang Hongting Lawyer
case introduction
Lin joined Guangyang Company on January 20, 2007. On January 1, 2012, Guangyang Company signed an unfixed-term employment contract with Lin. At the beginning of 2019, Guangyang Company carried out personnel reform on the auxiliary positions of the unit based on the competition for employment. A reform plan for auxiliary positions was formulated and publicized.
After the personnel reform of Guangyang Company, two rounds of recruitment were conducted before and after, and Lin also filled in the "Lin's Job Registration Form" to participate in the recruitment. After the first recruitment on January 28, 2019, Lin failed to take up the post, including Lin and other Guangyang companies for the first time to recruit non-employed personnel during the waiting period, Guangyang Company conducted simple training for these employees. On April 22, 2019, I registered again for the second round of job recruitment. After Guangyang Company competed for the job assessment personnel to score the participants comprehensively, it was again confirmed that Lin failed to compete for the job due to the backward score ranking. On April 24, 2019, Guangyang Company decided to terminate the employment contract with Lin for an indefinite period and notified the unit union of the decision. After that, Guangyang Company served Lin with the "Notice of Termination of Labor" and paid economic compensation.
The court found that the company's employee competition for employment in the period from January to April 2019, and the subsequent training of Lin who failed to compete for employment by passing the assessment personnel and ranking the scores lower, and the termination of the indefinite employment contract relationship with Lin, did not comply with the law.
On the one hand, Guangyang Company did not provide evidence that Lin was incompetent for the job, but only reduced personnel in order to reduce staff and increase efficiency; on the other hand, after training Lin, it did not allow Lin to continue working in the original position for assessment, or to adjust the job After the assessment, to determine whether Lin was competent for the job, it only took a method similar to the last elimination to determine Lin was incompetent.
The court held that Guangyang Company admitted that the purpose of the competition was to reduce staff and increase efficiency, and the training content of the employees was not examined during the assessment, and the judges directly scored them. The training and assessment mentioned by Guangyang Company were not targeted to each other, and the assessment was not aimed at the training results. Therefore, it was impossible to judge whether Lin was still incompetent after training according to the results of Guangyang Company's assessment and scoring. Guangyang Company directly determined that Lin was incompetent for the job based on the training situation without actual assessment of Lin, and the termination of the employment contract with Lin was a unilateral illegal termination. The original judgment ordered Guangyang Company to restore the labor relationship with Lin.
Analysis and recommendations
In practice, how to prove that employees are "incompetent" has always been a pain point for employers. First, because the law requires a high burden of proof on employers, and second, employers often find it difficult to provide sufficient evidence to prove that employees are "incompetent" after assessment. Therefore, they are found to have illegally terminated the employment contract and paid double compensation.
What is the standard for determining "incompetent for work"? Article 26 of the Notice of the General Office of the Ministry of Labor on Printing and Distributing the "Explanation on Several Provisions of the < Labor Law >" mentions that "incompetent for work" refers to the inability to complete the tasks agreed in the employment contract as required or the workload of the same type of work or the same position. Employers shall not deliberately raise the quota standard so that workers cannot complete it.
After searching a large number of cases, the author found that the employer's determination that the employee is "incompetent for the job" does not meet the legal provisions mainly includes the following points:
1. Employers do not establish clear assessment standards
In practice, employers do set up performance appraisal indicators, etc., but these indicators are aimed at how to improve the performance ability of employees, and use this as a calculation method for distributing performance, but they do not specify that the relevant performance appraisal indicators are used as the assessment criteria for employees' ability to do the job. Therefore, employers believe that their own rules and regulations and assessment indicators have made judgments on employees' ability, but because the object and purpose of the evaluation do not confirm that employees are "capable of doing the job", it is easy to be considered that there is no clear assessment standard.
Suggestion: The solution should be to clarify the criteria for "incompetent work" in documents such as the "employment contract", "Job Responsibilities Requirements" and "Assessment Standards", define the corresponding assessment clauses in detail, and use the assessment criteria agreed by both parties in the future employment process.
2. The assessment standards set by the employer are unreasonable
What is unreasonable? The employer sets the assessment standard for a certain position so that the employee cannot complete it at all. For example, during the COVID-19 pandemic, the employee is asked to complete the sales performance regardless of the objective impact of the lockdown. As a result, the employee cannot complete the result of the assessment standard, but this cannot be attributed to the employee. Therefore, the assessment standard cannot be used as a basis for determining that the employee is "incompetent for the job".
In practice, employers are often found to be illegal termination of employment contracts.
It is recommended that employers should comprehensively formulate assessment standards based on job responsibilities, company development, and employee work intensity, and evaluate employees with the same standards to avoid situations where the assessment requirements are too high and the employees cannot be completed objectively.
3. Lack of quantification and refinement of assessment standards
This is also a problem that employers are prone to in practice. For example, for administrative personnel, most of the employer's assessment standards are general terms, "conscientious and responsible", "active in work" and "respectful of leadership". Such assessment standards often cannot have a clear calculation basis, assessment range, and performance compliance requirements like "performance". There is a lack of quantitative and refined assessment content. Whether the work meets the standards depends on the subjective opinions of the employer, so it is difficult to get the recognition of the referee body.
Suggestion: The assessment basis should be detailed and operable. For example, for service positions, the number of customer complaints and employee evaluations can be used as specific assessment criteria, while for sales positions, the sales volume and performance targets should be specified as assessment criteria. The assessment content should be as far as possible to exclude the discretion of the assessor, and to ensure the objectivity of the assessment results.
4. Unable to provide evidence that the employee is "incompetent for the job"
Taking this case as an example, the training and assessment mentioned by Guangyang Company are not targeted to each other, and the assessment is not aimed at the training results. Therefore, it is impossible to judge whether Lin is still incompetent after training based on the results of Guangyang Company's assessment. In practice, the employer either provides too weak evidence, or the evidence provided cannot prove the employee's job content, job requirements, assessment standards, etc.
Suggestion: The employer cannot provide evidence for the assessment, mostly because the employer only has its own "hands-on" records, lacks audio, video or written records of the assessment process, lacks employee signature confirmation of the assessment results, sends the assessment results to employees, and gives employees a period of objection. In the end, the assessment results are only documents unilaterally produced by the company, and there is no trace of mutual confirmation by both parties.
Finally, even if the employee is confirmed to be incompetent after the assessment, the employee must be trained or transferred first, and the employment contract can only be terminated if the employee is determined to be incompetent.
The law requires
Law of the people's Republic of China on employment contracts
Article 40 In any of the following circumstances, the employer may terminate the employment contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary:
(1) The worker is sick or injured due to work, and cannot engage in the original job after the expiration of the prescribed medical treatment period, nor can he engage in the work arranged by the employer separately;
(2) The worker is incompetent for the job, and after training or job adjustment, he is still incompetent for the job.
(3) The objective circumstances on which the employment contract is based have undergone major changes, resulting in the inability to perform the employment contract, and the employer fails to reach an agreement on changing the content of the employment contract after consultation with the employee.
"Notice of the General Office of the Ministry of Labor on Issuing the" Explanation on Several Articles of the "Labor Law"
Article 26 Under any of the following circumstances, the employer may terminate the employment contract, but shall notify the worker in writing 30 days in advance:
(1) The worker is sick or injured at work, and after the medical treatment period expires, he cannot engage in the original job or the job arranged by the employer separately;
(2) The worker is incompetent for the job, and after training or job adjustment, he is still incompetent for the job.
(3) The objective circumstances on which the employment contract was concluded have undergone major changes, resulting in the inability to perform the original employment contract, and the parties cannot reach an agreement on changing the employment contract through negotiation.
Item (1) of this article means that after the expiration of a worker's medical treatment period, if he cannot engage in the original work, and after the original employer arranges appropriate work, he still cannot engage in the work arranged separately, the employment contract may be terminated.
The term "incompetent for work" in item (2) of this article refers to the inability to complete the tasks stipulated in the employment contract or the workload of the same type of work or the same position as required. The employer shall not deliberately raise the quota standard so that the worker cannot complete it.
The "objective circumstances" in this article refer to the occurrence of force majeure or other circumstances that make it impossible to perform all or part of the terms of the employment contract, such as the relocation of enterprises, mergers, transfer of enterprise assets, etc., and exclude the objective circumstances listed in Article
27of this Law.
Lawyer Profile
Wang Hongting Lawyer
Secretary General of Marriage and Family Department of Zhiheng Marriage Family Affairs and Wealth Inheritance Center
Contributor of Shenzhen Lawyers Association
Areas of expertise:
Marriage wealth, corporate governance
Civil and commercial affairs, infringement, labor disputes
Bankruptcy liquidation and other litigation and non-litigation services
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