Recently, Beijing No. 2 Intermediate People's Court disclosed a labor dispute case in which the employer terminated the labor contract with employee Zhang on the grounds that he failed the performance appraisal.
The court ruled that the company was terminated illegally, and both parties should continue to perform the labor contract.
(The Paper, January 31)
According to current laws and regulations, an employer must meet certain conditions to dismiss an employee.
The Labor Contract Law stipulates that only under six circumstances, such as "during the probationary period, it is proved that the employee does not meet the employment requirements", "seriously violates the rules and regulations of the employer", "seriously dereliction of duty, engages in malpractice for personal gain, and causes great damage to the employer", the employer shall Only then can the labor contract be terminated unilaterally.
In addition, in the three situations where the employee is "incompetent for the job, after training or job adjustment, but still not competent for the job", although the employer can also dismiss the employee, it must "notify the employee in writing 30 days in advance. Or pay workers an extra month's wages."
Strict legal provisions protect the basic rights and interests of workers.
But there are also some employers who try to use "little tricks" to bypass the law.
Among them, it is a very common practice to formulate a set of internal rules and regulations and link the performance appraisal results with the retention of employees.
Once these units encounter a situation where employees fail to meet the standards in the assessment results, they may "fire the squid" on the grounds of "seriously violating the rules and regulations of the employer" and "incompetent for the job".
The same is true of the dispute disclosed by the Beijing Second Intermediate People's Court.
The employer involved in the case formulated its own performance management measures early on, stipulating that the enterprise has the right to dismiss employees whose assessment results are in need of improvement without paying any compensation or compensation.
At first glance, the dismissal of the employee involved seems to be the company acting in accordance with the regulations.
However, in the view of the court, the "local regulations" set by the enterprise cannot change the illegal nature of this behavior.
According to the Labor Contract Law, when an employer formulates, revises, or decides on rules and regulations or major issues that directly involve the vital interests of employees, it shall discuss with the employee representative meeting or all employees, put forward plans and opinions, and negotiate with the trade union or employee representatives on an equal footing. , but can't act on its own, and don't put the interests of employees in the eyes.
The reason why labor legislation is designed in this way is precisely to prevent employers from imposing "overlord clauses" and violating the rights and interests of workers.
For an employer, the most severe punishment for an employee is dismissal.
Performance appraisal reflects the actual work performance of employees, and should not be confused with employees' violation of the rules and regulations of the employer.
Even if an employee who fails the performance appraisal is "incompetent for the job", the law also stipulates "remedial measures" and requires "training or adjusting his job position" first, which also reflects the people-oriented temperature of the law.
In this dispute, the employee Zhang neither seriously violated the rules and regulations of the employer, nor did he make any major mistakes, causing multiple losses to the employer, and his performance for several years after joining the company was above the "qualified line".
The result of several assessments is "to be improved", and it is "killed with a stick" directly, smashing the job of supporting the family, which is unreasonable in terms of emotion, reason and law.
Based on the richness of real life and the abstraction of legislation, it is impossible for any legal clause to exhaust all phenomena, and the same is true for labor legislation.
But protecting the legitimate rights and interests of workers is never empty talk.
In this labor dispute case, the court passed a resounding judicial decision, clarifying that the unqualified employee assessment is not a sufficient reason to terminate the labor contract, drawing a clear red line of the rule of law for the employer, and publicizing the legislation that strictly protects the rights and interests of laborers. Spirit.
(Liu Tingting, China Youth Daily)