The Supreme Law: The "Final Elimination" Unilaterally Dissolve The Labor Contract Is Illegal.

The summary of the Eighth National Civil and commercial trial meeting (civil part) issued by the Supreme People's court in November 30th is clear that the employer can unilaterally terminate the labor contract in the form of "elimination of the last position" or "competition for posts" within the term of the labor contract, and the employee may request the employer to continue to perform the labor contract or pay the compensation on the ground that the employer illegally terminates the labor contract.

The head of the Supreme Court said that the "final elimination" should not be equated with the rescission of the labor contract, and the dissolution of the labor contract must be carried out according to law. From the perspective of labor contract law, China's law does not allow employers and workers to terminate the "elimination of last resort" in the labor contract. Labor contract It can be seen that the last employee in the enterprise management examination is "eliminated" and lacks legal basis.

According to the briefing, this summary also standardized some problems in the convergence of labor dispute litigation and trial proceedings, so as to facilitate the parties to the labor contract to exercise their right of action according to law.

The summary of the Eighth National Civil and commercial trial Conference (civil part) consists of 8 parts and 36 articles. It involves marital and family disputes, tort disputes, real estate disputes, disputes over real rights, labor disputes, cases of construction contract disputes and civil trial procedures. The introduction of the minutes will guide people's courts at all levels to fairly handle various civil cases according to law, properly protect the legitimate rights and interests of all kinds of civil subjects, and effectively promote sustained and healthy development of the economy and society.

The twenty-ninth provision of the labor contract law stipulates: "employers and workers should fulfill their obligations in accordance with the stipulate of the labor contract."

In practice, some employers stipulate that merit pay is paid according to the staff assessment level. This is understandable. However, the conclusion, alteration and termination of labor contracts are both legal acts of the two sides. The employing units can not unilaterally decide, which involves many aspects such as performance goal setting, performance appraisal and performance improvement in the performance management system.

Among them, the formulation of performance targets should be formulated according to law. In particular, assessment indicators should be formulated according to certain tasks or workload. Besides, performance appraisal should be fair and reasonable.

[case replay] Lv Guozhong was the deputy general manager of the human resources department of the land finance and insurance company before leaving. The company's "Interim Measures for the management of employees' remuneration and benefits" stipulates that employees' salaries include monthly basic salary, performance salary and annual bonus. Employee performance salary = monthly basic wage * assessment coefficient * time coefficient. The coefficient of management staff assessment was 0, the qualified rate was 6, the good rate was 6.9, and the excellence rate was 7.8.

According to the "ranking group of common resources department of other departments in charge of the Department", the total score of Lv Guozhong's annual performance appraisal is 82.27 points, the last one of the 13 assessment personnel is ranked, and the assessment level is "to be promoted". The former one, that is, twelfth points, is 82.28 points, the assessment grade is "qualified", tenth points are 87.87 points, and the assessment grade is "good". The land finance and insurance company said that the assessment was basically the final elimination, and the last "to be promoted" was disqualified, and there was no merit pay and annual bonus.

However, according to the people's Court of Pudong New Area, Shanghai, according to the performance management plan formulated by the earth insurance company, the annual assessment is the performance of the employees. Comprehensive quality Although Lv Guozhong was ranked the last in his ranking group, he was identified as "to be promoted". However, he was only 0.01 points worse than the former who was identified as "qualified", and only tenth points were identified as tenth "good". The land insurance company classified the "qualified" and "unqualified" in the form of "last elimination", which lacked rationality and could not prove that the final staff performance and comprehensive quality were not qualified. According to the relevant provisions of the land finance and insurance company, combined with the specific circumstances of the case, the court decided that Lv Guozhong's assessment results were good, and the coefficient of merit pay was 6.9.

The Pudong New Area people's court's civil judgment (2013) Pu min Yi (min) was sentenced to No. 34360th, and the land financial insurance company should pay the Lv Guozhong performance salary difference of 70080 yuan and the annual bonus 58400 yuan according to the 6.9 month basic wage standard. The land finance and insurance company appealed against the decision. Shanghai first intermediate people's court civil judgment (2014) Shanghai one three (min) end word no. 352nd dismissed the appeal and upheld the original judgment.

Some people believe that the unit can not terminate the unexpired labor contract with the "final elimination", but if the labor contract concluded between the two sides is "the last place in the performance appraisal results", it is another matter to agree on the conditions for termination of the labor contract. Is that correct?

The thirteenth article of the regulations on the implementation of the labor contract law clearly stipulates: Employing unit No other conditions for termination of a labor contract shall be agreed with the laborer other than the termination of the labor contract stipulated in the forty-fourth article of the labor contract law. " The forty-fourth clause of the labor contract law stipulates that the labor contract will terminate at the expiry of the statutory period and there is no provision for termination of the contract. Therefore, it is no legal basis for the termination of the examination contract as the termination condition of the labor contract.

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