If the employer's implementation of competitive recruitment can prove that the employee is "incompetent for the job" and that the job adjustment and salary adjustment are reasonable, it is a legitimate exercise of the enterprise's employment autonomy, and the employee's request to make up the wage difference according to the pre-competitive treatment standard will not be supportedWu Moumou v. Metro Group, Labor Dispute Case: Luo Yingqing, Labor Dispute Tribunal of Shenzhen Intermediate People's Court, Guangdong Province (2019) Yue 03 Min Zhong No. 4498, Shenzhen Intermediate People's CourtBasic facts of the case
Plaintiff Wu Moumou claimed that he was transferred to the Metro Group in 1993 and had signed an indefinite labor contract with the position of "deputy department manager", and in November 2006, he failed to participate in the competition for middle-level cadres and was demoted and reduced in salary. In May 2017, he retired at the age of retirement, but the metro group did not cooperate with the procedures, resulting in the inability to enjoy pension benefits. Therefore, he filed an arbitration claim, claiming that the subway group violated the competition for employment, and demanded that the salary difference between January 2007 and June 2017 be made up by 1013195 yuan according to the pre-competition standard, and that the compensation for the illegal termination of the labor contract should be paid 70754652 yuan and compensation for pension losses, etc.
The arbitral award rejected the other arbitration claims, except for some of the unused annual leave wages, attorneys' fees, and cooperation with the retirement. Wu Moumou was dissatisfied and filed a civil lawsuit, and the litigation claim was basically the same as the arbitration claim.
The defendant Metro Group argued that it was in accordance with the requirements of the Municipal State-owned Assets Supervision and Administration Commission (SASAC) to implement the competitive recruitment of middle-level management cadres, and that Wu Moumou was transferred from the management position (demoted by one level) after failing to compete for the job, and that the transfer was in accordance with the labor contract and had been actually performed for many years, so there was no need to pay the wage difference. The labor relationship between the two parties was terminated because Wu Moumou reached the retirement age, and the employer did not need to pay compensation and economic compensation. Wu Moumou refused to go through the retirement procedures and should bear the loss of pension by himself.
After trial, the court found that Wu Moumou joined the Metro Group in 1993, and failed to participate in the competition for middle-level management cadres in November 2006, and was transferred from the management position of deputy manager of the department (downgraded by one rank), and his salary was also reduced accordingly. Wu Moumou was dissatisfied with the long-term complaint, and after reaching the age of the metro group, he still refused to go through the retirement procedures after being notified by the metro group many times, and the dispute between the two parties arose.
Adjudication Results
The People's Court of Futian District, Shenzhen, rendered the (2018) Yue 0304 Min Chu No. 32566 Civil Judgment: 1. The Metro Group paid 23,352 wages for unused annual leave18 yuan;2. The metro group cooperated with Wu Moumou to complete the application for pension insurance benefits;3. Reject Wu's other litigation claims.
After the verdict was pronounced, Wu appealed.
The Shenzhen Intermediate People's Court rendered the (2019) Yue 03 Min Zhong No. 4498 Civil Judgment: 1. Item 1 of the first-instance judgment is upheld;2. Revoke items 2 and 3 of the first-instance judgment;3. The MTR Group paid 47 lawyers' fees65 yuan;Fourth, the metro group paid a year-end bonus of 12,067 for the period from January to June 20175 yuan;5. Reject Wu's other litigation claims.
The court held that
1. In view of the key focus of the dispute in this case, that is, whether the Metro Group should make up the salary difference during the demotion period in accordance with Wu's pre-competitive salary
1.In 2006, the metro group implemented the competitive recruitment of middle-level management cadres, which met the requirements of the reform of the personnel system of state-owned enterprises and the needs of the development of production and operation of enterprises at that time
2.The competition for the establishment and implementation of the procedures are perfect and standardized, reflecting the principles of openness, fairness, democracy and merit, and can objectively evaluate Wu's management ability and suitability, and the subway group will transfer it from the management position according to the results of the competition in accordance with Article 40 (2) of the Labor Contract Law [hereinafter referred to as 40. (2)] provisions;
3.Wu Moumou failed to provide evidence to prove that there were violations of laws and regulations in this competition;
4.According to the results of the competition, the subway group transferred Wu Moumou from the management position was not targeted, punitive and insulting, and Wu Moumou's democratic recommendation was not satisfactory, and a total of 16 people were transferred from the management position with him
5.The implementation of competition for posts by Metro Group is in line with the provisions of the labor contract between the two parties and the rules and regulations of the unit
6.The metro group adjusted Wu's salary according to the principle of salary change with the post, and it was reasonable.
To sum up, Wu's request to make up the difference in wages cannot be established.
2. Other points of dispute in this case:
1.On the issue of compensation and economic compensation for illegal termination of the labor contract, the labor relationship between the two parties was terminated because Wu Moumou reached the retirement age, and the Metro Group was not required to pay compensation or economic compensation in accordance with the law.
2.On the issue of labor remuneration from July to November 2017, Wu Moumou refused to retire and continue to work, but the evidence submitted by him, such as the closure of OA attendance and access control functions, confirmed the claim that the Metro Group had stopped arranging his work, and Wu's request to continue to pay labor remuneration was not based on sufficient grounds.
3.On the issue of the year-end bonus in 2017, Wu's salary bank statement shows that the metro group has a practice of issuing year-end bonuses, and the metro group should pay the corresponding year-end bonus with reference to the standard of the previous year.
4.On the issue of unused annual leave wages, Wu Moumou still has 15 days of annual leave left, and the metro group should pay the wage difference according to the statutory standard.
5.On the issue of wage increase and loss during the service period, Wu failed to prove that the two parties had signed a service period agreement, and the employer had no legal obligation to increase the employee's salary in accordance with the average social wage growth rate.
6.On the issue of compensation for pension losses, the metro group has paid the pension insurance premiums in accordance with the law, and has repeatedly notified the retirement procedures, Wu Moumou refused to sign the relevant application form, resulting in the delay in the retirement procedures, and Wu Moumou should bear the loss of pension benefits.
Case Analysis
This case is a labor dispute over job transfer and salary adjustment arising from the implementation of competitive recruitment by the enterprise. The competitive selection and elimination mechanism has been widely used by party and government organs, enterprises and institutions, and has caused many labor-management and personnel disputes. The Supreme Court successively issued Guiding Case No. 18 and the minutes of the Eight People's Congresses, rejecting the elimination of employees by enterprises. Affected by this, judicial practice tends to mechanically and excessively negate the competitive employment management behavior of enterprises.
Competitive employment management is an important part of the autonomy of enterprise employment, is an effective means for modern enterprises to enhance market competitiveness, China's current labor legislation also has relevant provisions, the judiciary should not simply deny, especially in the current long-term unilateral economic downturn superimposed on the complex and severe situation of the comprehensive confrontation between China and the United States, and labor dispute justice emphasizes the protection of the legitimate rights and interests of workers and the survival and development of enterprises, it is necessary to clarify the boundaries of the proper exercise of competitive employment management of enterprises and protect them.
1. Analysis of the value of competitive employment management
Competitive employment management refers to the positive and negative incentive employment management mechanism of enterprises through competitive employment, elimination of the last position, performance appraisal and other positive and negative incentives, according to the results of the competitive assessment to determine the promotion and promotion of employees' ranks, post adjustment, salary and even retention, so as to stimulate the enthusiasm of employees, improve the operating efficiency of enterprises, and promote enterprises to obtain stronger competitiveness and development in market competition.
This method of survival of the fittest and strong human resource management originated from the vitality curve theory of former GE CEO Jack Welch, and has been widely adopted by global enterprises and highly respected by famous domestic enterprises such as Huawei, Ping An, and Lenovo.
It has the following unique human resource management values:
The first is to promote the scientific allocation of human resources. It is conducive to selecting the best talents to do the most suitable work, and constantly optimizing the human structure through competition, solving the problems of bloated institutions and personnel, and slow performance, so as to achieve lean troops and streamlined administration, and excellent manpower.
The second is to promote competition and strive to build corporate culture. It is conducive to the introduction of open, equal, competitive, merit-based market-oriented employment concepts, breaking the backward system of seniority, motivating employees to improve and surpass themselves, and constantly injecting momentum and vitality into the enterprise.
The third is to promote the institutionalization of human resources management. It is conducive to building a scientific performance appraisal and evaluation system, realizing the standardization of human resource management, enhancing the market competitiveness and profitability of enterprises with the system, and making enterprises bigger and stronger.
However, competitive employment management emphasizes the utilitarian concept of competition and result-oriented, which is mutually exclusive with the traditional people-oriented concept, which is not conducive to creating a relaxed and trusting team atmosphere, and has been controversial in the field of labor law. Proponents, represented by Professor Dong Baohua, believe that the law is only a bottom-line provision, and should leave room for enterprise employment management, and should not prohibit the system of rewarding attendance and punishing lazinessThe opponents, represented by Professor Chang Kai, believe that it is not conducive to the stability and harmony of labor relations and should be banned.
China's current labor legislation does not expressly prohibit it, and there are obscure provisions, but the strict restrictions on job transfers, salary adjustments, dismissals and other legislative provisions of enterprises have strictly suppressed them, and judicial practice regards them as employment taboos. This is contrary to the fact that it is widely respected and used by enterprises in reality, forming a deviation between regulation and demand.
2. Competitive employment management rights**
(1) Legal basis
From the perspective of the nature and content of the power, the competitive employment management right belongs to the employment autonomy of the enterprise.
The current labor legislation does not clearly state the autonomy of enterprises in employment. From the perspective of relevant research, analysis and practice, it specifically refers to the employment rights enjoyed by enterprises within the framework of legal permission to independently recruit employees, and to conclude, change, and terminate (terminate) labor contracts according to the needs of operation and management.
Among them, the right of competitive employment management of enterprises specifically includes the right to formulate and implement the work evaluation system for employees, and the right to adjust posts and salaries when employees are incompetent for work, and even the right to terminate. As an important part of the autonomy of enterprise employment, the competitive employment management right of enterprises has the basis and support of legal theory.
1.Property freedom and economic rights determine the autonomy of enterprises in employment.
In order to obtain the right to subsistence security, a worker voluntarily transfers a certain right of labor control and personal control to the enterprise through the "express" form stipulated in the labor contract and the "implied" form accepted by the management rules and regulations, which "is equivalent to placing the individual worker within the control of the employer and having the right to control the worker's person and personality".
2.The autonomy of employment is the basis for the implementation of production and business activities of enterprises.
As a market entity, in order to achieve the profit target, enterprises must carry out and adjust production and operation activities in accordance with market demand and changes, and the implementation of production and operation activities must rely on the optimal allocation and management of human resources by enterprises. "The production and operation activities of enterprises are essentially the combination of labor and means of production, and if enterprises want to maximize their interests, they must make the best allocation mode of labor and means of production, and select and allocate labor according to market needs and their own interests. If enterprises do not have the autonomy to employ workers, they will not be able to follow the rules of the market and select and arrange the labor force according to their own needs." The effectiveness of the exercise of an enterprise's employment autonomy is related to the degree and efficiency of the vitality and efficiency of the enterprise's human resource allocation, which is crucial to the survival and development of the enterprise, and is the natural right granted to the enterprise by law.
3.Appropriate protection of the autonomy of enterprises in employment is conducive to maintaining stable and harmonious labor-management relations.
From the analysis of the purpose and value of the law, the goal of enterprises is to maximize production capacity and profits, and on the surface, the autonomy of enterprises pursues the value of efficiency, while the survival rights and interests of workers reflect the value of fairness and justice.
However, if too much emphasis is placed on the protection of workers, enterprises will be overburdened or their survival will be affected, investors will lose their enthusiasm for investing and operating enterprises, more workers will lose job opportunities, and workers' survival rights and interests will be threatened. On the contrary, appropriate protection of enterprises' employment autonomy is conducive to enterprises' pursuit of efficiency goals and enhancing their enthusiasm for investment and operation, which will mean that many workers will obtain job opportunities and higher benefits.
Therefore, from the perspective of the essence of the phenomenon, the autonomy of enterprise employment includes the pursuit of stable production and operation order and the stable employment rights and interests of workers, that is, the value of order and justice, while pursuing outstanding efficiency. The lessons of many countries in the world show that legislation that intervenes too much in the labor market and places too much emphasis on the protection of workers' interests will ultimately backfire. Long-term unemployment and declining workers' welfare due to the large increase in labor costs and excessive burdens on enterprises have counterproductively threatened the survival rights and interests of many workers. The autonomy of enterprise employment and the rights and interests of workers belong to the two poles of labor relations rights, and only by maintaining a balance between the two can the rights and interests of both parties be balanced and protected, thereby promoting the stability and harmony of labor relations.
(2) Current legislative provisions
After searching the current labor legislation, the right to manage competitive employment of enterprises is vaguely scattered in the following legal provisions:
Article 4 of the Labor Law states that "an employer shall establish and improve rules and regulations in accordance with the law to ensure that workers enjoy their labor rights and fulfill their labor obligations." Article 47 "An employer shall, in accordance with the characteristics of its production and operation and its economic benefits, independently determine the wage distribution method and wage level of its own unit in accordance with the law. ”
Article 26 of the Explanation of the Ministry of Labor on Several Articles of the Labor Law of the People's Republic of China (hereinafter referred to as the "Explanation of the Provisions of the Labor Law") refers to the inability to complete the tasks agreed in the labor contract or the workload of personnel of the same type and position as required. ”
Article 8 of the Employment Promotion Law states that "employers shall enjoy the right to employ employees on their own in accordance with the law. ”
Article 4 of the Labor Contract Law states that "an employer shall establish and improve labor rules and regulations in accordance with the law to ensure that employees enjoy labor rights and perform labor obligations." ", 40. (2) "Under any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary: (2) The worker is incompetent for the job and is still incompetent for the job after training or job adjustment. ”
In principle, the above-mentioned legislation affirms the autonomy of enterprises in the management of competitive employment, including the independent determination of wage distribution methods and wage levels according to the actual situation, and the training or transfer of incompetent workers can be carried out, and the workers who are still incompetent for the job after training or transfer can be lifted, that is, the right to manage competitive employment has the source of existing legislative norms.
(3) Rules for judicial adjudication
Due to the sensitivity of the management methods of job transfer, salary reduction, and dismissal of negative incentives, the judiciary has chosen a conservative or even negative attitude under the influence of emphasizing the pursuit of judicial value of tilting the protection of workers' rights and interests. The Judicial Interpretation (IV) of the Supreme Court on Labor Disputes provided for the denial of the content of the elimination of dismissal by enterprises, but the official draft deleted it, indicating that there was a dispute in the Supreme Court on this issue at that time.
However, a year later, the Supreme Court issued Guiding Case No. 18 to explicitly deny it. The main points of the adjudication of the case: "If the employee is at the bottom of the employer's grade assessment, it is not equivalent to 'incompetent for the job', and does not meet the statutory conditions for unilateral termination of the labor contract, and the employer cannot terminate the labor contract on this basis." ”
Article 60 of the minutes of the Eighth People's Congress (Draft for Comments) stipulates that if an employer unilaterally terminates a labor contract within the term of the labor contract by means of elimination of the last position or competition for posts, etc., and the employee requests the employer to continue to perform the labor contract or pay compensation on the grounds that the employer has illegally terminated the labor contract, it shall be supportedUnless otherwise agreed in the labor contract. The proviso clause was deleted in Article 29 of the Official Draft. Compared with Guiding Case No. 18, the minutes of the Eight People's Congress have a stronger negative significance, and exclude all elimination dismissals by enterprises.
According to Article 40 of the Labor Contract Law. (2) It stipulates that if an employee is incompetent for the job and is still incompetent after training or job transfer, the enterprise may exercise the right of unilateral termination in accordance with the law, regardless of whether the employee is in the last position. For the workers who are at the bottom of the competitive assessment, there are two possibilities: competent and incompetent for the job, if competent, they shall not be transferred or dismissed, and if they are incompetent, they can be transferred or even dismissed in accordance with the law.
The aforesaid judicial adjudication rules do not distinguish and reject all of them, which is obviously inconsistent with the provisions of the above-mentioned provisions. As mentioned above, enterprises have a high degree of autonomy in the critical evaluation of employees, especially those in core positions. The relevant adjudication rules should not be stricter than the current legislation, and should not be simply repudiated mechanically based on the form of elimination of the last worker and the form of competitive evaluation, but should be combined with the principle of good faith in the civil law to divide and rule the last worker's competence.
3. Definition of the legitimacy exercise of competitive employment management rights
Article 40 of the Labor Contract Law. (2) It is the most direct legal basis for the right to manage competitive employment, and the judiciary may determine the key points of review around its application conditions, which can be specifically defined by hierarchical review according to the nature of the dispute: first, whether the design and implementation of the competitive evaluation system can objectively judge the competency of the employee's position;The second is whether the company's training or transfer is in good faith;The third is the competency of the workers after training or job transfer procedures.
Knockout transfer disputes only need to be reviewed around the first two levels, while knockout dismissal disputes need to be reviewed around the above three levels. Since the principles of the third level of review are the same as those of the first level, the key points of review of such disputes include whether the employee has reached the level of incompetence and whether the training and job transfer arrangements follow the procedural principles. This case only involved an elimination of the transfer of posts and salaries, and did not involve an elimination of dismissal.
(1) Review of the design and implementation of the competitive appraisal system
According to Article 40 of the Labor Contract Law. (2) It is stipulated that when the scope of the last position set by the employer's competitive assessment results coincides with the incompetence of the work, the elimination of the employment management of the enterprise shall be legal.
The fact that the competition assessment is at the bottom of the list seems to be similar to the situation in which the worker is incompetent for the job, but in fact there is a qualitative difference. The former can only evaluate the latter in relativity, rather than automatically deriving the absolute evaluation of the latter. This is precisely the gist of the adjudication of Guiding Case No. 18. In practice, there are completely situations where you are at the bottom but meet the requirements of the position, especially in the elite team. Only when it is at the bottom of the competitive assessment and objectively incompetent, can the enterprise carry out elimination training or transfer.
Judicial practice should focus on examining whether the design and implementation of the enterprise competition assessment mechanism can prove that the workers in the bottom rank are objectively incompetent for the target position. Specific should be reviewed:
1.Whether the competition assessment system is set up scientifically, reasonably, clearly and implementably.
It should be reviewed whether the objective management system is clear and detailed, whether the definition of assessment positions and responsibilities is clear and quantified, whether different assessment indicators and evaluation methods are set for different positions, whether the assessment content is realistic and operable, whether there are specific measurement standards for incompetence, and whether the assessment conclusions can be directly linked to incompetent work, etc. Article 26 of the Explanation of the Labor Law does not contain detailed provisions on incompetence. There is controversy in the academic community about the scope of reasons for incompetence: some propositions are limited to objective reasons such as the age and health of the worker;Some propositions should include the subjective and objective reasons of the worker and the objective reasons of the enterprise. Combined with Article 40 of the Labor Contract Law. (2) The legislative purpose and the conditions for the performance of the labor contract should emphasize the examination of competency, without the need to review the specific reasons, that is, all subjective and objective factors should include the incompetent employees.
2.Whether the competition evaluation system performs democratic formulation and publicity procedures in accordance with the law.
As rules and regulations involving the vital interests of workers, specific implementation documents such as performance appraisal and evaluation should be democratically formulated and publicized before they can be used as the basis for employment management. Enterprises can also stipulate specific performance appraisal rights and job transfer autonomy in the employment contract, and set the contractual basis for competitive employment management.
3.Whether the implementation of the competition assessment system follows the principles of openness, democracy, fairness and justice.
Review whether there is a black-box operation in the competition assessment, whether there are formalities and formalities in the assessment process, and whether there are effective appeal and supervision procedures and guarantees for the exercise of rights.
(2) Review of training or transfer procedures
According to the Labor Contract Law 40. (2) It is stipulated that the employer may organize training or transfer employees who are incompetent. Judicial practice should focus on reviewing whether training and job transfers follow the principle of good faith.
1.Training-specific reviews.
Labor relations are of a continuing nature, and the basis for establishing and maintaining them is not limited to the professional abilities that the workers already have, but also includes the expectations of their ability potential. An employee's temporary poor performance cannot be a reason for incompetent dismissal, and the dismissal must be reasonable to the extent that it cannot be changed even after the training opportunity is given, that is, the "principle of expectability" is adhered to.
The establishment of the pre-training procedure by the legislation also stems from the employer's obligation to train the employee with a certain degree of vocational ability in the labor-management relationship. In many cases, the ability of workers, especially fresh graduates who have never received vocational education, to acquire excellent employment skills depends on the vocational training they receive after entering the workforce. If there is a deviation in the employee's working ability, the employer shall also bear the responsibility for the ineffective training. Because the improvement of workers' vocational ability cannot be solved through a short period of training, it is related to the specific training method and duration. The cycle and method required for the improvement of various vocational skills are different.
Judicial practice should reasonably determine the effective method and duration of training required according to various occupations and positions, and review whether the training methods organized by the enterprise are appropriate and whether the duration is sufficient. For example, the classic precedent of Japan's "Kyushu Gakuin University Lecturer Dismissal Incident" held that Kyushu Gakuin dismissed a university lecturer on the grounds that it was unable to submit academic **, and that the 11-month period of inspection was obviously too short, so the dismissal was unlawful.
2.Review of transfers.
In practice, most of the incompetent workers are transferred to other positions. The continuity of the labor contract and the social law characteristics determine that the enterprise should first respond to the incompetent employee by flexible job transfer, and only start the dismissal procedure when the employment contract cannot be expected to continue.
In response to incompetent dismissal, Professor Michio Hitoda sorted out two levels of judgment criteria, namely the degree benchmark and the job benchmark, supplemented by specific considerations for special positions. The legal premise for effective dismissal is that the employee's performance is "significantly bad", i.e., incompetent;In terms of job benchmarking, it is necessary to not only focus on the current position of the employee, but also expand to other positions that the employee may be qualified for. Only when other positions that may be arranged by the enterprise are not qualified can it be effectively dismissed.
The legislation stipulates that enterprises are required to perform the advance procedures for incompetent job transfers, which is consistent with the spirit of the "principle of predictability" in the performance of the above-mentioned labor contracts.
In judicial practice, the following aspects of reasonableness review shall be conducted in accordance with the principle of good faith for incompetent transfers:
1) Review whether the transfer is appropriate.
It should be examined whether the enterprise really takes into account the comprehensive quality of the workers when allocating positions to determine the more appropriate positions for which the workers are likely to be qualified. In order to avoid pushing incompetent workers to the brink of dismissal, the nature and competency requirements of the adjusted positions must be moderately lower than those of the original positions or those where no workers lack specific competency requirements. In addition, the main purpose of the job transfer must be to save or avoid the unemployment crisis of the employee, not just because of the business needs of the enterprise, otherwise it is difficult to conclude that the enterprise has fulfilled the statutory obligation of "dismissal and avoidance". For example, in Guiding Case No. 18, the reason for the transfer of worker Wang Peng was due to the needs of the enterprise's operation, rather than the rescue transfer.
2) Check whether the transfer is malicious.
For incompetent job transfers, the legislation stipulates that enterprises have the right to unilaterally transfer jobs, but the transfer of employees cannot be done out of bad faith, such as transferring to a place or position that makes the employee uncomfortable, or transferring to a derogatory or punitive position, otherwise, the employee can disobey the transfer. In addition, it is necessary to correctly understand the issue of appropriate demotion/demotion of incompetent employees according to their competence, such as transferring from a managerial position to a non-managerial position, or from a higher position to a relatively lower position, because it is due to the employee's lack of subjective ability, and the enterprise is reasonable to demote or demote, and the transfer should be deemed reasonable.
3) Review whether the salary adjustment is reasonable.
Since the worker does not have the vocational skills required for the original position, the enterprise arranges the employee to engage in a position with relatively low ability requirements or no labor lack ability requirement according to the scope of the employee's ability to bear, so the job transfer may involve the change of different positions at the same level or the change of posts at different levels. As long as the transfer is reasonable, it is also legal and reasonable for the enterprise to appropriately reduce the salary of the employee according to the value of the labor provided by the employee after the transfer, according to the principle of salary change with post.
4) Review whether the transfer procedure is standardized.
Job adjustment is related to the vital interests of workers, and workers should enjoy the right to be fully informed. Enterprises should inform employees of the reasons for job transfer, job content, working conditions and benefits before and after job transfer, and properly handle the feedback of employees, so as to reduce the negative impact of job transfer on employees as much as possible.
Based on the above analysis, the competitive assessment implemented by the enterprise can prove that the employee is incompetent for the job, the enterprise can organize the employee to undergo training or job transfer, and the employee is still incompetent for the job can exercise the right of notice termination in accordance with the law.
In this case, the competitive recruitment promoted by the Metro Group met the requirements of the reform of the personnel system of state-owned enterprises and the needs of production and operation development at that time, and the procedures for competitive recruitment were perfect and standardized, and there were no violations of laws and regulations during the implementation, so it was possible to objectively evaluate whether Wu Moumou was qualified for the middle-level management position, and his adjustment of Wu's position according to the results of the competition was not targeted, punitive and insulting, so it should be determined that the transfer and salary adjustment of the Metro Group was legal and effective.
Relevant Laws. Article 40, Paragraph (2) of the Labor Contract Law of the People's Republic of China In any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary: (2) The employee is not competent for the job, and is still incompetent for the job after training or job adjustment.
Article 8 of the Employment Promotion Law of the People's Republic of China Employers enjoy the right to employ employees independently in accordance with law. Employers shall protect the legitimate rights and interests of employees in accordance with the provisions of this Law and other laws and regulations.
Article 47 of the Labor Law of the People's Republic of China An employer shall, in accordance with the characteristics of its production and operation and its economic benefits, independently determine the wage distribution method and wage level of its unit in accordance with the law.