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Employees are not obligated to ensure efficiency and employers need to tolerate appropriately

Update time:2021/7/30 15:51:49 Browse times:677

Guide: Are employees required to meet the performance requirements of the employer when performing their labor obligations? Can employers with poor performance terminate labor contracts? This matter requires specific analysis of specific issues.

From legal theory, performance of labor obligations and civil obligations are different in ways. Employees are not obligated to ensure efficiency. Employers assess employees based on specific performance, taking into consideration two aspects: the employee's ability to complete and the employee's attitude. However, the adoption of a similar assessment at the end of the labor contract (ranking the last 5%) to determine that employees are incompetent for their work and thus terminating the labor contract does not comply with the basic legal principles of the Labor Law and cannot be supported by the ruling.

 

Facts: Dismissed at the end of the ranking

Xiao Zhong is a financial salesperson of UODER Shanghai Information Technology Co., Ltd. As the output was 1 order in April 2019 and 0 order in May 2019, the company decided to terminate the employment contract without any severance in accordance with Article 3 of the Optimization and Protection Mechanism of "League of Heroes" Competition System of the Market Business Line.

Article 3 of the competition system stipulates that those employees who rank the last 5% in the monthly competition will be involved in the optimization process, and those employees meeting the requirements of optimization protection mechanism can apply for protection according to the process. The optimization and protection mechanism includes that the company has the right to terminate the labor contract with the employees who rank the last 5% for 2 consecutive months.

On June 3, 2019, the company issued the Notice of Termination for Fault of Employment Contract, terminating the employment contract with Xiao Zhong.

 

Dispute: Can an Unsatisfactory Company terminate the Employment Contract for Free?

Poor performance is a common ground for companies to dismiss employees. There are various reasons for poor performance, such as work ability, work attitude, physical illness, external market, cooperation with colleagues, etc. In addition, there is always someone who is ranked last. Is an employer entitled to dismiss an employee who does not perform well?

 

Arbitration Opinion: Elimination of the Last Place Illegal

If an employer unilaterally terminates the employment contract through "elimination of the last place" during the term of the employment contract, the employee can claim damages from the employer on the ground that the employer illegally terminates the employment contract. In this case, there is no legal basis for the respondent to terminate the employment contract with the applicant on the ground that the applicant reached the last 5% of the competition results for 2 consecutive months. Therefore, we support the applicant's claim for compensation for illegal termination of the employment contract. The respondent shall pay the applicant RMB 16960 as compensation for illegal termination of employment contract.

 

Lawyer's Comment: There is no obligation of guaranteeing efficiency when performing an employment contract

The subject matter of performance of an employment contract is different from the subject matter of sales contract. Legally, there is no obligation of guaranteeing efficiency when performing an employment contract.

Paragraph 2 of Article 3 of PRC Labor Law stipulates that an employee shall complete his work tasks and improve his professional skills. This rule of law is of a de jure non-sanction nature that would have been so provided. Generally speaking, the objective standard of payment (diligence, local customs, business practices, etc.) for performance of the employment contract is not legally binding, and the employee's subjective possibility shall be considered. As for the employer, the employee shall be tolerated of different abilities and work efficiencies. Therefore, the elimination provision of the last place violates the law. The provision of the last place in this case, which ranks in the last 5%, is a kind of elimination provision with a different face. Termination of employment contract based on this reason shall be deemed as illegal termination.

However, although the law does not require the employee to undertake the obligation of guaranteeing work efficiency, if the employee intentionally fails to properly perform the employment contract, and intentionally fails to make proper payment, such conduct constitutes abuse of rights, and the employer may terminate the employment contract.