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下面为大家整理一篇优秀的essay代写范文- The legal regulation of the last elimination system，供大家参考学习，这篇论文讨论了末位淘汰制的法律规制。末位淘汰制作为用人单位内部规章中涉及劳动者切身利益的制度，其制定程序应当符合《劳动合同法》第四条的规定，制定过程中应有企业职工的参与，广泛征求职工代表的意见。对于已经确定的制度要有公示的程序，让全体职工有明确的标准来执行。对于已经生效的规章制度，在决定实施的过程中，工会或者职工认为不适当的，有权向用人单位提出，通过协商予以修改完善。

The last elimination system is a method of performance appraisal. It refers to a performance management system in which the employer sets a certain assessment index system based on the actual situation of each post, evaluates employees based on this standard, and eliminates employees with lower scores according to the assessment results. The introduction of this performance management mode in Chinese enterprises has brought about the conflict between the autonomous management right of the employer and the labor right of the laborer.

In practice, the unit of choose and employ persons implements the form diversification of elimination system of the last position. How to regulate the abuse of dismissal right by employing units under the cover of elimination system at the bottom so as to achieve the balance between the autonomous management right of employing units and the labor right of workers?

Of the 31 selected judgments, only 6 were deemed legal by the court for the measures taken by the employing units to implement the last-place elimination system. Most cases can be identified by the court as employers illegally remove labor contracts, visible in the current implementation of the end of the elimination system, for employers very high risk.

Through the analysis of the judgment, it is found that the form of the final elimination of the employing unit not only refers to the direct removal of labor contract, but also includes the adjustment of post, adjustment of salary and other forms, in addition, the final elimination of labor contract of the employing unit due to the final elimination of the reason is also diverse, which is also the reason why the court judgment results are different. The following will be from the employer based on the end of the elimination system to terminate the contract.

In the sample, there were 20 cases in which the employer directly terminated the labor contract, among which 18 cases were found to be illegal termination, and 2 cases were rejected by the court because the lawsuit filed by the laborer exceeded the limitation of action.

According to the statistical induction of the judgment, the court affirming that the employing unit directly removes the labor contract illegal reasons mainly have the following several: first, the last elimination does not belong to the "labor contract law" 39, 40 provisions of the unit can unilaterally remove the labor contract. Second, the rules and regulations of the employer on the last elimination system are illegal and cannot become the basis for the management of employment. The 3rd, rank last place and assessment score are low not equal to cannot be competent for the job, the unit cannot remove labor contract for this reason.

A total of 10 cases in the sample involved job transfer, among which 6 cases were found to be legal and 4 cases were found to be illegal.

Judge to remove for legal basically is the following reason: the first kind is laborer does not obey adjust post decision to leave office automatically, the court thinks "unit of choose and employ persons executes the system that eliminate the last position to did not bring about the result that removes labor contract with laborer directly", affirm unit of choose and employ persons does not have labor illegal behavior consequently. The 2nd kind is unit of choose and employ persons is right "last position" laborer makes after adjusting post decision, laborer is absent from work, unit of choose and employ persons dissolves labor contract with laborer serious violate labor discipline, the court affirmatory and lawful. The third kind is "last position" laborer is checked after adjusting post still unqualified, unit of choose and employ persons lifted labor contract, the court thinks "the reason that removes labor relation is laborer cannot be competent for the job, still cannot be competent for the job after post adjustment, do not break the law. The fourth kind is laborer passes many times transfer post, still assess unqualified, unit of choose and employ persons lifted labor contract, the court thinks "laborer cannot prove the unit breaks the law to remove labor relation, bear the consequence that proof cannot prove."

There are still four types of illegal discharge. In the first category, the court considers that there is no necessity and legality of post transfer. "the performance appraisal of the unit is macroscopic, general and subjective, and no evaluation criteria are provided." The second category is that the court considers that the formulation procedure of the rules and regulations of the employing unit is not in conformity with the legal provisions, so there is no factual basis for carrying out evaluation and taking measures according to the rules and regulations. The third type of court held that "the employer determines that the laborer is not competent for the work by eliminating the last part of the work, but there is no factual basis for incompetence, which infringes on the legitimate rights and interests of the laborer." ? Fourth class court ruled that the employer to the employee "incompetence" to cancel the contract, is to confuse the relationship between the "bottom" and "incompetent", "end is just a kind of unit of choose and employ persons assessment rankings, and incompetent is caused by workers skills can't meet the needs of the job work can't do the normal situation, the two completely different, not to" incompetence "legal act to" take out "the illegal ACTS as cover." ?

Through retrieval only one case is unit of choose and employ persons trains the worker of the last place to assess first post is transferred, because laborer is absent from work again, remove labor contract, the court affirmatory it is legal

Lifted. In this case, the regulation system that unit of choose and employ persons formulates according to law undertakes assessment to the job achievement of laborer, below the circumstance that laborer assessment does not accord with a requirement, inform laborer undertook corresponding post groom. And in the case of workers after training unqualified for its transfer to the post. The laborer did not arrive at the new post for 15 days after the transfer of the post, which violates the provisions of the employing unit "administrative disciplinary measures for employees" and is a serious violation of the rules and regulations of the employing unit. Therefore, the employing unit made a decision on the dismissal of the laborer. The court concluded that "the employing unit has fulfilled the corresponding notification obligation, and conforms to the requirements of the employing unit in formulating rules and regulations. It belongs to the scope of enterprise decision-making power, and does not violate the provisions of the law." ?

As for the legality of the last-place elimination system itself, some scholars evaluated it as follows: "under the system framework with dismissal law as the core, the last-place elimination system has been floating at the edge of law and agreement, repeatedly touching and testing the bottom line of tolerance of legislation and justice in the form of internal regulations of employers. ? Does the court have the right to review the employer's internal performance appraisal system?

In judicial practice, the court will conduct a procedural review of the employer's performance appraisal system and, when necessary, a substantive review. Article 4 of the labor contract law stipulates that when an employing unit formulates, modifies or decides rules and regulations or major matters directly related to the personal interests of laborers, it shall discuss with the workers' congress or all the workers, put forward plans and opinions, and consult with the trade union or workers' representatives on an equal basis. The employing unit shall publicize or inform the workers of the rules and regulations and major matters directly related to the personal interests of the workers." So the court will review the establishment procedure of unit of choose and employ persons appraisal system, such as talking about east MinChuZi 2075th in the judgment, the court pointed out that "the unit of choose and employ persons work attendance checking system is directly relate the interests of the workers, rules and regulations, on the procedures, without the employee representative congress or all the employees for discussion and put forward solutions and advice, or equality talks things over with Labour union or worker representatives to determine, nor will the work attendance checking system of the public in the proper manner or inform the laborer, the attendance system does not have the legitimacy and therefore the defendant unilaterally terminate the labor relationship it is illegal to remove." ? In offshore work MinChuZi judgment in no. 2384, the court and performance appraisal system of unit of choose and employ persons is the essence of audit, the court pointed out that "the plaintiff company" for two consecutive years to C, the contents of the personnel must be conducted out ', at the risk of "take out", in violation of the "labor law" the relevant principle, when the invalid provision." ?

Although the last elimination system belongs to the internal regulations of the employer, it cannot be a cover for the employer to abuse the right of dismissal. Through the empirical analysis of relevant cases, it can be found that when the employer unilaterally terminates the labor contract due to the elimination of the last position, it will generally invoke article 39 of the labor contract law that "seriously violates the rules and regulations of the employer" and article 40 that "the laborer is not competent for work".

First of all, "assessment bottom" equal to "serious violation of the rules and regulations of the employing unit"? Obviously not. Assessment of the bottom is the inevitable result of the implementation of the ranking system, not subject to subjective control. And violate rules and regulations of unit of choose and employ persons is laborer subjective it, laborer knows to have this system to exist, still cause the consequence that intentionally. Accordingly, although laborer assessment is in last position, unit of choose and employ persons also cannot remove labor contract with violating labor rules and regulations.

Second, is "at the bottom of the assessment" the same as "incompetent"? The above mentioned "serious violation of the rules and regulations of the employing unit" is usually invoked only when the workers do not obey the unit's decision on post transfer, so what is the necessity and legality of post transfer? The author believes that the most important thing is to clarify the relationship between "bottom" and "incompetent".

In the no. 18 guiding case of the Supreme Court, the court pointed out that "the laborer is in the lowest rank in the grading assessment of the employing unit, which does not mean that he is incompetent for work and does not meet the legal conditions for unilateral termination of labor contract, and the employing unit cannot unilaterally terminate the labor contract accordingly." ? The "last place" in the enterprise performance appraisal is a relative evaluation of the worker's work performance or ability, rather than an absolute evaluation of the worker's incompetence in specific business. And "labor contract law" medium competence points to the specific relation between laborer and the business that place is engaged in, those who judge this kind of relation should be a kind of objective, absolute evaluation. There are three main theories about the criterion of "incompetence". The first kind is objective cannot say, it is to show laborer cannot be competent because of objective reason work. Include the objective reason of laborer oneself and objective reason of unit of choose and employ persons. The objective reason of laborer oneself basically is to point to laborer because of the reason such as age, health, cannot continue to fulfil the pay obligation that agrees in labor contract, cannot satisfy the requirement of unit of choose and employ persons, and this kind of circumstance is not laborer subjective ability can control, however the general law that human society develops. The objective reason of the employer is that the employer constantly improves the production technology and adopts higher and stricter assessment standards on the path of pursuing the maximization of interests, which leads to the fact that the laborer's own ability remains unchanged but he cannot meet the demands of the employer. The second is that both objective and subjective cannot be said. This theory believes that in addition to the objective ability, physical and mental condition, knowledge and other factors, the subjective factors of laborers should also become the judgment criteria of "incompetent", such as the subjective ability of laborers but not for, passive sabotage and so on. The third one is compromise, said the idea that labor is not competent for job is to show laborer is not up to objectively, exceptional cases recoverable objective and subjective judgment standard, such as the labor contract signed by both sides stressed workers provide services of trust relationship between subjective attitude or special emphasis on, which make the subjective elements of laborer labor exist, the basis of the value and meaning of once laborer lack of subjective elements, will lose the labor contract, at this time will be allowed to unit of choose and employ persons to be terminate the labor relationship. ? No matter which kind of theory, what adopt is absolute evaluation standard. The relative evaluation of "the bottom" and the absolute evaluation of "incompetent" are two completely different evaluation models. There is no necessary connection between the two. It is only based on the bottom of the performance evaluation to position incompetent, and then make the decision of dismissal, which will obviously cause the illegal evaluation of insufficient evidence.

According to the legal procedure, the elimination system is legal, but in the actual operation process, employers constantly touch the bottom line of tolerance of legislation and justice with this system. The implementation of a system should be limited by the law it is in, and give power to the enterprise within the framework allowed by the law. Therefore, it is necessary to carry out legal regulation on the knock-out system.

As a system involving the personal interests of laborers in the internal regulations of the employing unit, the formulation procedure of the last-place elimination system should conform to the provisions of article 4 of the labor contract law, the formulation process should involve the participation of enterprise employees, and the opinions of employees representatives should be widely solicited. For the system that has been determined, there should be procedures for publicity, so that all employees have clear standards to implement. If the trade union or the staff and workers think that the rules and regulations that have taken effect are inappropriate in the process of deciding to implement them, the trade union or the staff and workers shall have the right to propose to the employing unit for modification and improvement through consultation.

When formulating the rules and regulations of the employer, the employer's performance objectives, performance assessment standards and other contents shall be taken into consideration as a whole, and the legitimate rights and interests of the employer and the employee shall be fully considered. In addition, some principles of laws and regulations should be concretized to fill in the gaps of laws and regulations. Direct dismiss last laborer affirms

Is illegal discharge, enterprises will more often determine that workers are not competent for work, and take follow-up measures. In the process, for not up to that is not a legal standard, unit of choose and employ persons in the bottom knockout, with laborer is not up to standard, such as the accumulation of a few times can't complete the same positions of average workload as incompetent, and follow-up measures, do both sensible and does not violate the rule of law.

Should end eliminate the use when removing labor contract to try to restrict, at present unit of choose and employ persons executes end eliminate system, have the following kinds of circumstance commonly: the first kind is to remove labor contract directly, through case analysis of front paragraph, this kind of circumstance belongs to break the law to remove. The second is the termination of "serious violation of rules and regulations". In this case, the employer should bear the burden of proof for the legality of the rules and regulations formulation procedure, and also prove that the laborer knowingly or should have known the content of the system, but intentionally carried out serious violation of rules and regulations. The third is "not up to work, after training or adjust hillock, still is not up to work" to cancel the contract because, in this case, the unit of choose and employ persons must first prove that laborer to work, secondly to prove that the unit on the training or the duty, finally, prove that training the workers still is not up to work after the post. And in fact in the first step to prove that workers can not be competent for work, assessment of the bottom is only a supplementary evidence, assessment of the bottom is not necessarily equal to incompetent work. If the "last place" must be linked with the statutory dismissal conditions, the employer must simultaneously set up an absolute evaluation-oriented business ability control system and combine the two sets of rules closely. On the one hand, the "last-place elimination" mechanism with relativity evaluation as the core should be adopted to discover the potential deficiencies of employees' abilities. After the fixed end range, on the other hand, further introduction of absolute evaluation mechanism, to current demand or may change other job ability as the reference system, the actual work ability of employees of the bottom to make the evaluation of quantitative type, only in the absolute evaluation falls into "incompetent", and after training or transfer is still not up to the to the firing process.

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