It Is An Offence To Terminate The Labor Contract With "Elimination Of Last Resort".

In November 30, 2016, the Supreme People's Court promulgated the minutes of the Eighth National Civil and commercial trial work of the national court (civil part), and made clear that the employing unit could unilaterally terminate the labor contract in the form of "elimination of the last position" or "competition for posts" within the term of the labor contract, and the worker could use the unit to terminate the labor contract illegally, and requested the employer to continue to perform the labor contract or pay the compensation.

This summary also standardized some problems in the convergence of labor dispute litigation and adjudication, so as to facilitate the parties to the labor contract to exercise their right of action according to law.

The head of the Supreme Court said that the "final elimination" should not be equated with the rescission of the labor contract, and the dissolution of the labor contract must be carried out according to law.

From the perspective of labor contract law, China's law does not allow employers and workers to terminate labor contracts on the grounds of "elimination of last resort" in the labor contract.

The final elimination system was first introduced by the former Ge Corp CEO Jack Welch, who was introduced into China in the 90s of last century.

It has positive significance in maximizing employee potential and maximizing personal performance, and is adopted by many enterprises and institutions.

The core of this system is to let all employees participate in competition, and then through some form of examination or selection, it will be eliminated at the end or behind.

The final elimination system has positive significance for improving the work efficiency of employees and motivating employees' work potential, but there are also some problems in implementation.

If the employee is too stressed and unbearable, the employer evaluation standard is not scientific, regardless of the nature of the post, and is implemented at all posts. Especially, the handling of the last employee's labor relations may be directly related to the labor contract law.

Remind one

The final assessment is not equal to the unqualified work.

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"The twenty-ninth article stipulates:" employers and workers should fulfill their obligations in accordance with the stipulate of the labor contract. "

In practice, some employers stipulate that merit pay is paid according to the staff assessment level. This is understandable.

However, the conclusion, alteration and termination of labor contracts are both legal acts of the two sides. The employing units can not unilaterally decide, which involves many aspects such as performance goal setting, performance appraisal and performance improvement in the performance management system.

Among them, the formulation of performance targets should be formulated according to law. In particular, assessment indicators should be formulated according to certain tasks or workload.

Besides, performance appraisal should be fair and reasonable.

[case replay] Lv Guozhong was the deputy general manager of the human resources department of the land finance and insurance company before leaving.

The company's "Interim Measures for the management of employees' remuneration and benefits" stipulates that employees' salaries include monthly basic salary, performance salary and annual bonus.

Employee performance salary = monthly basic wage * assessment coefficient * time coefficient.

The coefficient of management staff assessment was 0, the qualified rate was 6, the good rate was 6.9, and the excellence rate was 7.8.

According to the "ranking group of common resources department of other departments in charge of the Department", the total score of Lv Guozhong's annual performance appraisal is 82.27 points, the last one of the 13 assessment personnel is ranked, and the assessment level is "to be promoted". The former one, that is, twelfth points, is 82.28 points, the assessment grade is "qualified", tenth points are 87.87 points, and the assessment grade is "good".

The land finance and insurance company said that the assessment was basically the final elimination, and the last "to be promoted" was disqualified, and there was no merit pay and annual bonus.

However, according to the people's Court of Pudong New Area, Shanghai, according to the performance management plan formulated by the earth insurance company, annual assessment is to assess the performance and comprehensive quality of employees. Although Lv Guozhong ranks the last in his ranking group, he is identified as "to be promoted", but only 0.01 points were identified with the former who was "qualified", and only tenth points were identified as "good". The land insurance company classified the "qualified" and "unqualified" in the way of "final elimination", which lacked rationality and could not prove that the final staff performance and comprehensive quality were not qualified.

According to the relevant provisions of the land finance and insurance company, combined with the specific circumstances of the case, the court decided that Lv Guozhong's assessment results were good, and the coefficient of merit pay was 6.9.

The Pudong New Area people's court's civil judgment (2013) Pu min Yi (min) was sentenced to No. 34360th, and the land financial insurance company should pay the Lv Guozhong performance salary difference of 70080 yuan and the annual bonus 58400 yuan according to the 6.9 month basic wage standard.

The land finance and insurance company appealed against the decision.

Shanghai first intermediate people's court civil judgment (2014) Shanghai one three (min) end word no. 352nd dismissed the appeal and upheld the original judgment.

Remind two

The last rank is not equal to no one.

What is "employee inability to work"? The interpretation of some provisions of the labor law of the People's Republic of China (No. [1994]289) explains that workers can not fulfill the tasks stipulated in the labor contract or the work amount of the same type of workers or workers in the same position as required.

This requires that when a labor contract is signed with an employee, the work content of the employee should be specified, and the workload of the specific industry needs to be defined.

If there is no definite workload when signing a labor contract, it can only be determined according to the workload of the same post.

Generally speaking, we should refer to the average work of the same type of job, and can not refer to the work of the same job with the same type of job.

Employees who are ranked on the top of their performance but those whose performance targets have been completed can not be punished.

Employees who fail to complete their tasks after performance can be identified as incompetent.

In addition, we should also take into account that the reasons for employees' incompetence are subjective factors rather than objective factors. Whether employees are competent or not should be judged by specific criteria.

Generally speaking, the company can provide the following evidence to prove that the laborers are not able to work: the duties and requirements of the workers in the post, the daily performance of the laborers, the assessment standards, and the assessment process.

If these documents are lacking, it is often hard to prove that workers are not competent.

Any examination has the last problem. If the labor contract is still effective, it is not lawful to terminate the unexpired labor contract directly on the grounds of final elimination.

Because employees rank in the final position of enterprise performance appraisal does not mean that they are not able to work.

To say the least, even if the worker is not competent, according to the provisions of the fortieth clause and the second item of the labor contract law, if the laborer is proved to be incompetent, only after training or adjusting the job position, once again proving that he is still not competent, the labor contract can be dissolved.

[case replay] Xiao Li worked in a sporting goods company for sales, with a monthly salary of 2000 yuan plus a business commission.

Although Xiao Li is a novice, he works very hard, willing to endure hardships, and has just made some achievements.

It didn't last long. With the increasingly fierce competition in the industry, Xiao Li's sales performance showed a marked decline. In the second half of the year, Xiao Li ranked 10% in the Department.

By the end of the year, the personnel department of the company informed Xiao Li that it would be included in the final elimination scope according to the company sales personnel assessment method, and the employment contract with Xiao Li was relieved without any compensation.

Xiao Li believes that the company's violation of the labor contract is illegal and requires the company to pay compensation for two months' wages.

However, the unit believes that the "company sales personnel assessment method" after the democratic process is legal and effective, which clearly stipulates the situation of incompetence.

Xiaoli's sales performance ranks at the bottom for a long time. It is simply not competent for the sales staff. The company is not unsuitable for the unqualified employees to terminate the labor contract.

When the two sides failed to negotiate, Xiao Li sued the Arbitration Commission for payment of the illegal labor contract compensation.

Huangpu District labor and personnel dispute arbitration court considers that the final elimination is not equal to incompetence.

The Arbitration Commission therefore decided that the company should pay compensation for the lifting of the law.

Remind three

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Some people believe that the unit can not terminate the unexpired labor contract with the "final elimination", but if the labor contract concluded between the two sides is "the last place in the performance appraisal results", it is another matter to agree on the conditions for termination of the labor contract.

Is that correct?

The thirteenth article of the regulations on the implementation of the labor contract law clearly stipulates: "employers and workers shall not stipulate other conditions for termination of labor contracts beyond the termination of labor contracts stipulated in the forty-fourth clause of the labor contract law."

The forty-fourth clause of the labor contract law stipulates that the labor contract will terminate at the expiry of the statutory period and there is no provision for termination of the contract.

Therefore, it is no legal basis for the termination of the examination contract as the termination condition of the labor contract.

[case replay] Mr. Xu entered an advertising company.

He signed an unfixed term labor contract with the company, and Mr. Xu was engaged in marketing work in the contract.

Now Mr. Xu has been working for just over a year, and the company has made clear that he has to terminate the labor contract ahead of schedule because he belongs to the "final elimination" range.

Mr. Xu was very depressed, so he took his own labor contract to find a lawyer.

In the labor contract, the two parties have agreed on the conditions for termination of the contract.

It is clearly stated that: the company implements the final elimination system, and the business personnel can not complete the specified amount of business in the month, for 2 consecutive months, or stay in the last 3 months of the assessment. After training or changing jobs, the business performance is still at the bottom of the appraisal staff, and it will be eliminated at the end of the accumulated 5 months.

Mr. Xu did not complete the required business volume for two months in a row.

After the company's training, Mr. Xu switched from "radio and Television Department" to "plane media department". Business performance has been rising for some time, but the statistics for the whole year are still at the end of accumulating 5 months, which is consistent with the termination conditions stipulated in the labor contract.

However, after the implementation of the labor contract law, this agreement has no legal effect.

Remind four

The expiration of the contract may not be the last resort.

It has been said that for the employees whose performance is at the bottom of the list, the employer does not directly alter or terminate the unexpired labor contract directly, but as an internal assessment basis, it is no longer possible to renew the labor contract with them after the expiration of the labor contract.

Generally speaking, economic compensation is required.

At the same time, we must note that the labor contract law stipulates that a worker who has worked continuously for ten years in the employing unit and the worker has proposed or agreed to renew and conclude a labor contract shall conclude an unfixed term labor contract, except for the worker making a fixed term labor contract.

Therefore, employees who are arranged at the end of the enterprise performance appraisal will be unable to terminate the labor contract at any time if he continues to work in the employing unit for ten years, so long as he proposes to renew the labor contract.

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