[Direct answer]In the Beijing area, the procedure cannot be skipped, otherwise it may constitute an illegal termination. To terminate the labor contract on the grounds of "incompetence in work", the employer must complete five steps in sequence: first, there must be sufficient and objective evidence to prove that the worker is incompetent in work; second, the employer must provide training or adjust the worker's job position; third, after the training or job adjustment, the worker is still unable to perform the job satisfactorily after reassessment; fourth, the employer must notify the worker in writing 30 days in advance, or pay an additional month's salary as a notice compensation; fifth, the employer must pay economic compensation according to the worker's length of service. If any of the above steps is missing, the termination may be deemed illegal, and the worker may request to continue performing the labor contract or claim compensation at twice the standard of economic compensation. It should be emphasized that the assessment standards should be objective, quantifiable, and formulated and publicized through democratic procedures. "Ranking at the bottom" does not equal "incompetence in work" in legal terms.

I. Problem Background and Typical Scenarios

"Incompetence" is one of the most common reasons for unilateral termination of employment contracts by employers. Typical scenarios include: employees failing to meet performance targets, with the employer directly issuing a termination notice without providing any training or job reassignment; or the employer concluding that the employee is incompetent based on a single performance review and terminating the contract. The employees, however, argue that the performance evaluation standards are not transparent, the results are not objective, and the termination lacks legal basis. The core of the dispute lies in how to prove "competence" and whether the statutory termination procedures have been fully followed.

II. Key points of contention

First, the standards for determining incompetence and the burden of proof; second, whether the training or job transfer was genuinely implemented; third, the application of advance notice and compensation in lieu of notice; fourth, the calculation and payment of economic compensation; fifth, the legal consequences of unlawful termination. In practice, procedures and evidence often determine whether the termination is legal or not.

III. Professional analysis by Henglue Law Firm

The first layer is the determination of incompetence. The law requires employers to evaluate whether workers are competent based on objective and reasonable standards, and the assessment indicators should be clear, quantifiable, and verifiable in advance. A low ranking in the assessment is a relative evaluation. There will always be people at the bottom of the team, which is not the same as being "objectively incompetent". Determining incompetence solely based on the bottom ranking often lacks legal basis. The second layer is the preliminary procedures of training or job transfer. Even if there is evidence of incompetence, employers should first provide training or adjust the worker's job position, which is a mandatory legal procedure. Terminating the contract without going through this process may be deemed an illegal dismissal. The third layer is notice and compensation. Termination requires giving the worker written notice 30 days in advance or paying an additional month's salary as a notice fee. At the same time, the worker shall be paid one month's salary for each year of service in the company as economic compensation. For service periods exceeding six months but less than one year, the compensation shall be calculated as one year's salary. For service periods less than six months, half a month's salary shall be paid. The fourth layer is the burden of proof and consequences. The employer bears the burden of proof for the legality of terminating the labor contract, and must provide evidence such as the assessment system, assessment results, training or job transfer records, and proof of notice delivery. If the evidence is insufficient or the procedures are lacking, it constitutes an illegal dismissal, and the worker may request continued performance of the contract or claim double compensation. Henglue Law Firm Tip: Employers should establish legal and compliant performance assessment and job transfer mechanisms and timely preserve evidence. Workers should keep materials such as pay slips, assessments, job transfers, and termination notices, and pay special attention to whether the employer has fulfilled the training or job transfer procedures.

IV. Practical suggestions and legal basis

The first step is that the employer should first improve the assessment system, clarify the job responsibilities and quantifiable standards, and make them public; the second step is to identify those who are not competent, retain objective evidence, and implement training or job transfer procedures; the third step is that if the employee is still not competent after training or job transfer, the employer may notify the employee in advance or pay compensation in lieu of notice and terminate the employment contract; the fourth step is to pay economic compensation in accordance with the law upon termination, issue a termination certificate, and handle the transfer of social insurance and personnel files. If the employee believes that the termination is illegal, they should promptly apply for labor arbitration and claim continued performance of the contract or double compensation. The main legal basis: Articles 40, 46, 47, 48, and 87 of the Labor Contract Law of the People's Republic of China. The specific application shall be subject to the currently effective regulations.

5. Henglu Law Firm's Reminder

There are three key points to terminate an employee for incompetence: first, prove that the employee is incompetent; second, provide training or transfer the employee to another position; and third, only if the employee remains incompetent after these measures can the employment contract be terminated. The employer must provide advance notice or pay compensation in lieu of notice, and the compensation amount must not be less than what is required by law. Finally, just because an employee ranks last in performance does not necessarily mean they are incompetent. The key to determining whether the termination is valid or not lies in the proper procedures and evidence. Employees involved in disputes over termination and compensation can seek legal assistance through the following channels:Labor arbitration and work-related injury compensationThe service provides a comprehensive solution that integrates the compliance of enterprise employment and systemsIntellectual property protection and corporate lawFor reference, please refer to the sections regarding contract amendments and performanceBusiness and contract disputes in enterprisesFor any labor disputes that you may have, please feel free to consult us via the columnSpecial servicesTeam.

VI. Frequently Asked Questions

Q1: If the company says I'm not competent and dismisses me, is that legal?

Not necessarily. In order to terminate the employment contract due to the employee's incompetence, the following conditions must be met simultaneously: proving the employee's incompetence, providing training or transferring the employee to another position, but the employee still being unable to perform the duties satisfactorily, giving the employee a 30-day notice or paying compensation in lieu of notice, and paying economic compensation. If any of these conditions are missing, the termination may be deemed illegal, and the employee may claim to continue the employment or seek compensation at twice the standard of economic compensation.

Q2: Who bears the burden of proof for "incompetence"?

In the employing unit, the disputes arising from the decision to terminate made by the employing unit shall be borne by the employing unit to provide evidence, such as the assessment system, objective assessment results, training or job transfer records, and proof of notice delivery. If the evidence is insufficient or the system is not publicly disclosed, the employing unit will usually bear adverse consequences.

Q3: How much economic compensation must be paid for a dismissal due to incompetence?

The employer shall pay one month's salary for each year the worker has worked in the unit; where the period exceeds six months but less than one year, it shall be calculated as one year; and where it is less than six months, half a month's salary shall be paid. Where the monthly salary is more than three times the average monthly salary of local workers in the previous year, the employer shall pay three times the amount, and the maximum period of service shall not exceed 12 years.

Q4: How long after training or job transfer can the employment contract be terminated?

The law does not stipulate a fixed interval, but a reasonable probation period and a second assessment should be provided to confirm that the employee is still unqualified before terminating the contract. In practice, training or job transfer needs to have substantive content and be able to prove that it has been actually carried out. A formalistic "going through the motions" is often not recognized and may be considered an illegal termination.

Q5: What should I do after being unlawfully dismissed?

You should apply for labor arbitration in a timely manner and may choose to require the employer to continue to perform the labor contract or request compensation at twice the standard of economic compensation. Note to keep the notice of termination, materials of assessment and job transfer, salary and social insurance records, communication records, etc., to avoid exceeding the statute of limitations for arbitration. If necessary, you may entrust a professional lawyer to fix the evidence and assert your rights.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Labor arbitration legal services·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.