论雇员不能胜任工作的解雇规则

发布时间：2018-06-08 22:19

  本文选题：不能胜任工作 + 裁量性解雇规则　； 参考：《现代法学》2017年06期

【摘要】：我国《劳动合同法》第40条继续设定了雇主因雇员不能胜任工作而有权单方预告解除劳动合同的裁量性解雇规则,这是雇主对经培训或调岗仍不能胜任工作的雇员所能采取的终极措施,同时附随着预通知或支付代通知金的前置性义务。能否胜任工作是判断雇员有否适当履行劳动给付义务的基本准则,是雇主作出录用、试用期满经同意转正、继续雇用等决定的主要依据。域外劳动法中,雇主行使解雇权应当具备正当理由;就雇员不能胜任工作这一与其自身状况相关联的事由而言,雇主享有预告解雇权。如雇员的工作业绩达不到岗位任务目标或未能恪守忠实勤勉义务的,可以认定其不能胜任工作,经挽救仍不能适当履行劳动给付义务的,雇主就可以作出解雇决定,以均衡保护雇主和雇员的合法权益。
[Abstract]:Article 40 of the Labor contract Law of our country continues to set out the discretionary dismissal rules in which the employer has the right to unilaterally announce the termination of the labor contract because the employee is incompetent. This is the ultimate measure that an employer can take for an employee who is still incompetent through training or transfer, accompanied by a pre-notice or payment in lieu of notice obligation. To be competent is the basic criterion to judge whether the employee has properly fulfilled the obligation to pay for labor. It is the main basis for the employer to make the decision of hiring, the probation period is approved to be changed, and the employee continues to be employed. In the extraterritorial labor law, the employer should exercise the right of dismissal for just reason, and the employer has the right of notice dismissal as far as the reason that the employee is not competent in the work is related to his own situation. If the employee's work performance fails to meet the objectives of the post or fails to abide by the duty of loyalty and diligence, he may determine that he is not competent in the work and, after being rescued, cannot properly perform the obligation of labor compensation, and the employer may make a decision to dismiss the employee. Protect the legitimate rights and interests of employers and employees in a balanced manner.
【作者单位】： 北京大学法学院;
【分类号】：D922.52
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本文编号：1997404