On The Termination Of Labor Contracts During Probation Period

[case introduction]

Mr. Zhao is an engineering designer who applied to enter a foreign-funded enterprise (hereinafter referred to as A company) for engineering design in March 20, 2006. His post is a design engineer. The term of labor contract signed by Mr. Zhao and A company is three years, and the agreed trial period is two months.

On the first day of Mr. Zhao's work, the personnel commissioner of the A company's human resources department carried out induction training for them, including the explanation of the employee handbook. At the same time, he told Mr. Zhao of the specific responsibilities and assessment criteria of the design engineer's position and confirmed his receipt.

According to the regulations of A, Mr. Zhao was assessed in the week before the expiry of the probation period, and Mr. Zhao failed to pass the assessment criteria.

Therefore, in May 19, 2006, A company issued the notice of cancelling the contract, the reason for which is that Mr. Zhao did not meet the employment requirements during the probation period.

Mr. Zhao believed that he worked conscientiously and conscientiously in the two months probation period, and did a good job in the matter. There was no situation that did not conform to the employment conditions. He thought that the practice of A company was a problem and damaged his own interests. When he failed to negotiate with A company, he applied for labor arbitration to the labor dispute arbitration committee in the area where the A company was located, and demanded the resumption of labor relations with A company.

[trial results]

The labor dispute arbitration committee has heard that A can give sufficient evidence to prove that Mr. Zhao is not in line with the employment conditions of the design engineer. Therefore, it is lawful for the A company to terminate the labor contract with Mr. Zhao during the probation period, and does not support Mr. Zhao's arbitration request.

[lawyer analysis]

I. provisions on probation period

The probationary period is a period of no more than 6 months for the employers and workers to make mutual understanding and choice.

The labor law of China stipulates that both parties can agree to a probationary period in the labor contract after the employee is employed by the unit, but the longest period should not exceed 6 months.

The labor contract regulations of Shanghai stipulate more clearly the probation period. If the probation period is less than 6 months, the probation period should not be set for more than 6 months, and the probation period should not exceed 1 months. The probation period should not exceed 3 months after the full 1 years are less than 3 years. The probation period of 3 years shall not exceed 3 months.

If the parties to a labor contract agree only on probation period, the probation period shall not be established, and this time limit is the term of the labor contract.

Two. Conditions for termination of labor contracts during probation period

In accordance with the provisions of the first and twenty-fifth paragraphs of the thirty-second labor law of China, workers may, at any time during the probation period, notify the employer of the termination of the labor contract. However, when the employer terminates the labor relationship with the laborer during the probation period, he must prove that the worker does not meet the employment requirements.

The burden of proof of employers is emphasized here.

Three, whether there is a need for thirty days' notice of the termination of labor contracts during the probation period and whether or not to pay the economic compensation.

During the probation period, the employer terminates the labor contract on the grounds that the laborer does not meet the employment conditions. It is a duty to release the labor contract and the employer fails to notify the worker thirty days in advance.

According to the twenty-eighth provision of China's labor law, the termination of labor contract is not the case that the employer should not pay the economic compensation, so the employer has no obligation to pay the economic compensation.

Four. Analysis of the case.

In this case, the burden of proof that Mr. Zhao does not meet the recruitment requirements during the probation period shall be borne by A company.

The contract, employee handbook, Mr. Zhao's entry day's training record, design engineer's post's specific duties and assessment criteria are used to prove the specific recruitment conditions and corresponding assessment standards of A company's design engineer positions. At the same time, A also submitted three engineering drawings designed by Mr. Zhao during his in service. There were many errors in his engineering design diagram, and related personnel's modification, endorsement, and A company's assessment of Mr. Zhao's probation period. It was used to prove that there was a lot of mistakes in the drawings designed by Mr. Zhao during the probation period, and his working ability could not meet the post requirements of the design engineer, and after the company's assessment, it did not meet the recruitment requirements, so the lifting of the company was legitimate. A submitted labour to the arbitration tribunal.

In this case, A company, as an employer, can quote a large amount of evidence to prove that Mr. Zhao did not conform to the employment conditions of the design engineer during the probation period. Therefore, the arbitration tribunal took the view of A company and did not support Mr. Zhao's arbitration request.

[lawyer reminded]

Establishing and improving the internal management system plays an important role in standardizing employment and regulating management by employing units.

The key to A's winning the arbitration is that there are sound rules and regulations within it, and the retention of evidence is also noted.