Answer:
In order to unilaterally terminate the LC with any Employee who regularly fails tofulfil the tasks, the Labour Code only requires the Employer to set the criteria for evaluating the task completion level in the enterprise’s regulations after consulting with the organisation representing employees at the grassroots level[1].Accordingly, the Employee’s comments (whether they agree or not) will not be a mandatory condition for the regulation on evaluating the task completion level to be effective. Therefore, if the Employer has set the regulation on evaluating thetask completion level in accordance with the prescribed procedure, they may rely on this regulation to unilaterally terminate the LC with the Employee regardless of whether the Employee agrees with this regulation or not.
However, if the Employee disagrees with the Employer’s unilateral termination of the LC and lodge his or her complaints with the local labour management State agency or initiate a lawsuit in a competent Court, then the Employer will be obliged to prove the legality of the decision on unilateral termination of the LC, particularly to prove the legality and appropriateness of the criteria for evaluating the task completion level set by the Employer[1]. If the labour management State agency and/or the competent Court evaluates and declares that this criterion is not applicable as some of its contents are against the law or not appropriate for the enterprise’s realities, or this regulation seems to be unfair to the Employee, then the Employer’ unilateral termination of the LC may be declared as unlawful. The Employer must therefore revise the criteria for evaluating the task completion level and get comments of the organisation representing employees at the grassroots level thereon, which will then be used as a basis for evaluating the task completion level achieved by the Employeefor the next assessment.
Therefore, in order that the contents of the criteria for evaluating the task completion level will not be rejected by the Employee or disapproved by labour dispute settlement agencies, criteria must be agreed upon by all the members of the organisation representing employees at the grassroots level prior to its issuance. In addition, the contents of criteria are not against the relevant law; and (iii) in terms of human resources administration, the Employer needs to consult the concerned Employee about criteria for evaluating the task completion level which will be applied to him or her, as a way to notify and make him or her clear about the regulation.
[1]Article 36.1 (a) of the Labour Code
[2]Article 91.1 (b) of the Civil Proceedings Code 2015
