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。
Article 40 of Labor Contract Law of PRC establishes discretion dismissal rule that employer unilaterally announces termination of labor contract due to incompetence of employees,which is final measures that employer takes to employees who are not competent to the work after training or job transfer by employer,and attached obligations of pre-notice or payment in lieu of notice in advance. Whether employee is competent to his or her position or not is basic criteria for determining whether employee will perform his or her labor payment obligations properly or not,and basis for decisions of employment,probationary period expires and continue to perform contracts made by employer. In extraterritorial labor laws,that employer exercises dismissal right should be justified,as far as employee is not qualified for the job which for reason that is related to it,employers have right to declare dismissal. If employee＇s work performance is not up to job target or failed to abide faithfully diligence,which can be identified by their incompetence,it still cannot fulfill labor right obligation after training,employer can make decision to dismiss him/her in order to protect legal rights and interests of employer and employee proportionately.
作者
叶姗
YE Shah(Law School of Peking University, Beijing 100871, China)
出处
《现代法学》
CSSCI
北大核心
2017年第6期106-118,共13页
Modern Law Science
关键词
不能胜任工作
裁量性解雇规则
预告解雇权
解雇权行使的限制
incompetent to his position
discretion dismissal rule
right to declare dismissal
restricting abuse of dismissal right
