How should an employer prove the employee is incompetent for his work?

According to the Article 40 of LABOR CONTRACT LAW OF THE PEOPLE'S REPUBLIC OF CHINA:"Under any of the following circumstances, the employer may dissolve the labor

contract if it notifies the employee in writing 30 days in advance or after it pays the employee an extra month's wages: (1)...,(2)The employee is incompetent to his position or is still so after training or changing his position; (3)...”.

But how to prove the employee is incompetent ? Here are some key points for your reference.

1. The employers shall, when judging whether the employee is competent for the job, judge on the basis of the evaluation standards that are formulated in advance through legal procedures and publicized to the employees, and such evaluation standards shall be comprehensive and objective.

2. Incompetence of workers may be attributed to their personal ability, or their working attitude, or their lack of education and qualifications required by their posts. Incompetence is always attributed to personal reasons, while incompetence shall not be ascertained if it is attributed to the reasons of the employer or other external reasons.

3. As for the standards for judgment, such standards are generally reflected by documents such as labor contract, appointment agreement, job description, performance appraisal standards, etc. If no standards for judgment or appraisal are formulated in advance, it is difficult to judge or identify whether the employees are incompetent for their jobs.

4. When determining an employee as incompetent for his or her job, the employer shall assess his or her specific qualification, performance and achievements through an objective and fair appraisal procedure and then reach the result in accordance with the standards. The employee shall be informed of the result in a timely manner.

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