2008Year May 18th,A strange number 021-502*****, a woman's voice: I live in 3* * * Road Lane 26, 6 floor, my husband in Shanghai * * street in a nursing home to do guard has been 8 years, the new labor contract signed only on 2008, the contract agreed time limit for two years, but after the signing was recovered, no to my husband a, recently hired a doorman, my husband decided to adjust the position, if my husband does not agree to adjust the position is legal, if the dispute my husband has much chance of winning?

   Answer: first, "labor contract law" second stipulates: "the people's Republic of China enterprises, individual economic organizations, private non enterprise entities and other organizations (hereinafter referred to as employing units), establish labor relationships with workers, conclusion, performance, modification, rescission or termination of the labor contract, the applicability of this method." The nursing home both belong to institution or private non enterprise units, because it has been with your husband a labor contract, the labor laws and regulations are applicable.

   Second, "labor contract law" the sixteenth stipulation: "the text of the labor contract shall be made by the employing unit and the laborer shall each hold one copy." Labor contract is the legal basis for the establishment of labor relations between workers and employers, the parties are clearly the basic form of their respective rights and obligations, the most direct evidence is to protect their legitimate rights and interests of workers. In real life, many employers to all sorts of reasons to belong to the laborer labor contract to workers, this approach directly infringes the lawful rights and interests of workers.

   Third, "labor contract law" third paragraph second: "the labor contract shall be concluded that have the force of law, the employer and the employee shall perform the obligations stipulated in the labor contract." That is to say, the labor contract concluded according to law is protected by law. Not in accordance with the law or with the consent of the other, any party shall not unilaterally modify or terminate the labor contract, otherwise it will bear the legal responsibility. The labor department in "about that workers because of job changes and business disputes and other issues related to reply": "about the employer can change employee job problems, should be in accordance with the" labor law "article seventeenth, article twenty-sixth, the provisions of article thirty-first of the spirit, because the objective situation with the labor contract entered into on the basis of the occurrence of major change, so that the original labor contract is unable to perform the labor contract, shall be the two parties through consultation, if no agreement is reached, may terminate the labor contract according to legal procedures; if the employee incompetence, adjust employees change jobs, belong to the employer's autonomy." "Labor law" of the people's Republic of China the seventeenth one is about the provisions of labor contract, the labor contract shall follow the principles of equality, voluntary, consensus, and shall not violate the provisions of laws, administrative rules and regulations. According to the provisions of the labor department, change jobs should be considered as the change of labor contract, change the general principle of the labor contract is the "consensus", before the employer in the change of the staff of the labor contract, should consult with employees, change to consent after. If the employee does not agree to the change, the parties shall continue to perform in accordance with the original labor contract. 

   Fourth, many units have agreed in the labor contract: "the employer has the right to the production and business operation needs to adjust the workers", set the terms of this is in some sense given the employer unilaterally change the labor contract rights, this is a clear violation of the labor contract shall be equal to the principle of consensus. In this sense, the terms and conditions that should be invalid. As long as the employee can do their own work, to the needs of production and operation is allowed to adjust the job behavior is illegal, workers can apply for labor arbitration to safeguard their legitimate rights and interests. In practice, caused by the post adjustment and salary dispute very much, the judicial organs of this attitude is: to recognize and protect the autonomy of enterprises and employment, but no employing units to abuse the rights of autonomy, which requires the firm has "full rationality on the adjustable Gang behavior of the burden of proof".

   The reference 

He is not competent for the position?

2010-03-10 16:16:00 source: Xinmin Evening News (Shanghai)

   "Unable to work" as the legal provisions of the employing units to be one of the reasons for termination of the labour contract, and understanding in our daily life can not do the job is different, not the workers cannot complete a task or the ability to work due to poor incompetent employers can immediately terminate the labor contract, but to after the "two proved incompetent" rear can lift. At the same time, there are many people mistakenly believe "incompetent" and "last phase system" is one thing, in fact, the two have obvious difference in meaning or operating procedures.

   A typical case

   Wang Department of university graduates, in 2008 August, Wang entered his first formal employer -- a Shanghai advertising design company (hereinafter referred to as the advertising company) in advertising planning, the two sides signed a three year contract, and contract for a trial period of three months. The probation, Wang's work also gradually on the right track, and is better, just six months, he created the business volume million for the company.

   Recognized in the ability to work, in 2009 February, the advertising company assigned to Wang a difficult advertising plan, and required by the independent responsible for, at the same time, he also need other work to assist the supervisor to complete the company. However, Wang is a just graduated from the school not long after the students, plus the usual task is very heavy, he is responsible for advertising plans to eventually because of Its loopholes appeared one after another., unrealistic and eventually abortion. Advertising companies on Wang's performance is very dissatisfied. In July 7, 2009, Wang received a notice of termination of labor contract issued by the advertising company, ask Xiao Wang since receiving notice to the relevant departments to handle the handover procedures, the company is willing to pay the salary of a month as lieu, reasons for dismissal is not competent for the job. For the advertising company practices Wang could not understand, that he usually work very well, it was just a task is not completed, how to become a job? The company can therefore be fired? Wang went to the labour dispute arbitration committee for arbitration, request that the advertising company to terminate the labor contract law and pay the corresponding economic compensation.

   The arbitration award

   Trial process, Wang submitted their job responsibilities, work assignment, completion of the written materials to the labor arbitration committee, and one by an advertising company, Wang signed evaluation work in the probation period is "excellent" examination table; proof materials and advertising companies submitted Wang advertising design the plan, and the failure to complete the task, and then prove that Wang is not competent for the work. Finally, the labor arbitration committee that the advertising company to terminate the labor contract behavior lacks legal basis, and therefore ruled in favor of the Wang's request for arbitration.

   Case analysis

   This case mainly involves the problem is what is referred to in the labor law "can not do the work".

   From the literal meaning, "incompetent" actually refers to the examination, the laborers from the lack of capacity or other reasons can not be achieved complete or partial evaluation target, for example, workers can not timely completion of tasks, not fully perform their duties and so on; from the practical point of view, "can not do the work and labor contract" should have four conditions: first is to have a set of effective assessment criteria system, including assessment objectives, assessment methods, assessment result etc.. Assessment criteria is that "the premise and foundation can not do the work". At the same time, due to the workers' interests, so in the evaluation criteria, the employing unit shall, after the democratic public program, consult and respect all employees and the opinions of the trade union. Second, "the first is not equal to", namely after the first examination has been proved that the employee does not meet the performance goals. Third, after training or adjustment to work. In the first proved not up to the job, the employing units shall conduct training or jobs for workers, which if you choose to transfer Gang, the adjustment should be rational, but not random arrangements. Fourth, "second is not equal to". Workers undergo training or gang again after the examination proved not up to the job. After these four steps, the employer had acquired the right to terminate the labour contract, the lack of any one program will lead to illegal employer terminates the labor contract act. At the same time, the employing units on the basis of "incompetent" termination of labor contract, should also be one month in advance to inform the laborers or choose to pay extra for a month salary as compensation.

   In addition, "not up to the job" and "end of the elimination system" is different. At the end of the elimination system is a product of the development of the modern science of human resources management, in many of the large Multi-National Corporation abroad is very popular, and can not do the work have a lot in common. For example, the two are required to set certain standards, and personnel flow and re configuration through the examination. However, "not up to the job" and "end of the elimination system" also exists obvious difference. Assessment methods, the first aim of the two different. Eliminated at the end of pass the examination just inside the enterprise existing staff are orderly arranged from top to bottom, at the end of the employees will be eliminated; and can not do the job evaluation is to set a standard, after examination after more than the standard is competent for the job, no more than is incompetent, proved incompetent after the employer should first be adjusted, to help the employees to perform work instead of termination of labor relations. In other words eliminated at the end of eliminated entirely possible are competent employees, but not competent employees will not be eliminated. Secondly, two different operating procedures. Not competent for the need to prove that the staff is incompetent, re training or post on its, then proved incompetent staff will be to terminate the labor contract, and has no such requirement eliminated at the end of. Notable is, because the labor contract by the employer unilaterally cancelling the reason must be prescribed by laws and regulations, therefore, as a kind of illegal reasons "eliminated at the end of" in the current legal system has been difficult to operate.

   Back to this case, advertising company to remove the Wang's behavior did not make any evaluation to prove their incompetence, don't even say after training or adjustment to work, so the dissolution of the labor contract act clearly illegal.

                           Zou Yang labor law service center of East China University of politics and law

            (blogger Advisory mobile phone 18321864965)