Asked by: Financing, HR
Hello Lawyer. We have an incompetent employee in our company and we would like to arrange for a new position for him. If he rejected the transfer of position, could the company directly terminate labor relationship with him?
Answered by: RDLo Shanghai Attorney Angela Xiang
Hi. According to Article 40 of Labor Contract Law, to justify unilateral termination of an incompetent employee, company shall firstly arrange training or position transfer. The new position should be reasonable and match the employee's prior workload and knowledge. Based on the rationality, if the transfer is reasonable but the employee rejects the arrangement, for example, employee refuses to go to the office, then it could be recognized as absence. Or, if the rules and regulations, e.g. disciplinary violation clauses in Employee Handbook, prescribed so, the company may take disciplinary action up to dismissal against the employee's reject of new position,. Suggest to pay attention to collect and keep all evidences during the whole process, such as written documents, communication records and Emails.