Question: Our company has signed a labor contract with Mr. X. During the course of work, we found that Mr. X had low work performance. May we ask whether the company can dismiss Mr. X ?
Answer:
According to the provisions of Point a, Clause 1, Article 36 of the 2019 Labor Code, the employer has the right to unilaterally terminate the labor contract if the employee “regularly fails to complete the work according to the labor contract”. However, the determination of the level of work completion cannot be done arbitrarily but must be based on specific evaluation criteria in the regulations issued by the employer. In particular, in places where there is an organization representing employees at the facility, this evaluation regulation must be consulted with the organization representing employees before being applied.
If the enterprise has not issued an evaluation regulation or the regulation has not been built in accordance with regulations, unilateral termination of employment for the reason of “poor performance” may be considered illegal. At that time, the company is at risk of have to accept the employee back to work according to Article 41 of the 2019 Labor Code.
Conclusion: The company can only legally terminate the labor contract with Mr. X if it has developed and issued a regulation on evaluating the level of work completion in accordance with legal regulations. Therefore, the company should first review, complete and publish the regulation on evaluating work, then base on the evaluation results to make a decision to terminate the contract.
Consultation: labor law services
