Lawyer: The Last Elimination System Is Unfounded.

A few days ago, some netizens burst out because they were ranked last in the top of last month's performance appraisal and were dismissed by the boss.

On the other hand, the netizen inquired, "is it lawful for enterprises to implement the final elimination system"? Netizens have given answers in succession. Some people think that this is the survival of the fittest. Some people think it is no reason to cancel the labor contract.

On this topic, the reporter listened to the views of many employees and business managers, and interviewed Zhao Peng, a lawyer of Beijing Ying Ke law firm, who was also serving the Huairou labor dispute mediation center.

Staff viewpoint:

1:

No sense of security

"Elimination of the last position".

Hear this.

Wen Wen, a worker, was surprised. "This is too cruel. The workers are too insecure."

Wen Wen is a sales representative of a pharmaceutical company. She told reporters that the performance ranking only reflects the work of a cycle employee, and there may be many objective factors in this cycle. If it is only because the rankings of a month's performance are not high enough, it will be too unfair to the staff.

Wen Wen said that she had not encountered the "last resort elimination system". But from the past work experience, the sales gap is very different before and after the Spring Festival every year. If the performance is not high before the Spring Festival, it will no longer see two times higher performance than the other months after the Spring Festival.

"The final elimination system is not entirely scientific."

This is Wen Wen's attitude.

2:

have access to

"The final elimination is the survival of the fittest, and the law of nature can be understood."

Liu Yuanyuan, a worker, said, "in fact, it is eliminated from jobs that are never suitable for a job. Enterprises can arrange workers to work in other jobs. If they are dismissed directly, they should be illegal."

Liu Yuanyuan also felt a little vague about her own statement, but she insisted that the advantages of the survival of the fittest should not be ignored. There should be such a competitive pressure in the workplace. There should be a corresponding management system for the enterprises to move their jobs. At the same time, they should also provide a channel for them to return to their posts through efforts.

But Liu Yuanyuan can't agree with the direct elimination of enterprises from the end.

Lawyer's point of view

The last elimination system has no legal basis.

"The last elimination system has no basis for law and can not be the reason for the termination of the labor contract."

During the interview, lawyer Zhao Peng of Beijing Ying Ke law firm and Huairou labor dispute mediation center gave a clear answer.

For the case where the employer can decide to terminate the labor contract, Zhao Peng lawyer said that in the thirty-ninth clause of the labor contract law, the employer can rescind the labor contract: it is proved to be unsuitable for employment during the probation period; it seriously violates the rules and regulations of the employing units; serious dereliction of duty, malpractice and damage to the employing unit; the laborer establishes labor relations with other employers at the same time, seriously affects the completion of the work tasks of the unit, or refuses to make corrections by the employing unit; because of the circumstances stipulated in the first paragraph of article twenty-sixth of this law, the labor contract is invalid; and the criminal liability is investigated according to law.

In addition, the fortieth provision provides that, in one of the following cases, the employer can notify the worker himself in writing or pay the employee one month's wages in advance thirty days, and may terminate the labor contract: if the worker is sick or not injured by work, he can not engage in the original work after the prescribed medical period is full, nor can he engage in any work arranged separately by the employing unit; the worker is not competent for the job, after training or adjustment of his post, he is still not competent for the work; the objective situation on which the labor contract is concluded has changed significantly, resulting in the labor contract being unable to fulfill, and the employer and the laborer have not negotiated the contents of the labor contract.

In fact, Zhao Peng said, in fact, the staff performance "end", the enterprise can consider its adjustment, in the "labor contract law" to allow the regulation of the thirty-fifth: the employers and workers in consensus, can change the contents of the labor contract agreement.

Change of labor contract shall be in written form.

The employer and worker shall hold one copy of the revised labor contract.

Zhao Peng said that in view of the "end" of the performance of the staff, the unit can follow the effective regulations and management system or negotiate with the laborers to set up the training plan or adjust the job plan to complete the change of the labor contract, which is also the realization of the optimal allocation of human resources, which is fair and reasonable for the unit and the labourers.

If the employer merely terminates the labor contract on the grounds of final elimination, it is illegal to terminate the labor contract, and the laborer may appeal to the relevant department or initiate labor arbitration.

Under such circumstances, the unit shall bear the liability for punitive damages for breaking the labor contract illegally.