Can An Enterprise Extend Or Shorten Its Probation Period?

[case] Xiao Liu entered a certain group company in June 2, 2015, and the labor contract signed by both sides ended in June 1, 2018, and agreed that the probation period will be from June 2, 2015 to September 30, 2015. Xiao Liu did well in two months, and his work performance was remarkable. After the suggestion of Xiao Liu's Department, the group's human resources department decided to shorten the probation period of Xiao Liu and handle it immediately. But Xiao Liu clearly objected to it. The reason was that the group's action in advance was equivalent to depriving him of the right to resign from the labor contract three days prior to the probation period.

Xiao Wang, who was recruited on the same day with Xiao Liu, had the same term of labor contract and the probation period as agreed with Xiao Liu. In late September 2015, the group's human resources department believed that Xiao Wang did not fully meet the company's requirements and wanted to extend the probation period for 3 months. Xiao Wang clearly expressed his opposition.

[analysis] generally speaking, enterprises shorten the probation period of employees, which is the benefit of employees from the perspective of enterprises. For example, employees can enjoy the right treatment in advance and do not need to be restricted or restricted by the probation period. However, this is just wishful thinking by enterprises.

Zhang said, according to " Labor Contract Law "Article thirty-seventh provides that during the probation period, the employee can notify the enterprise in writing 3 days in advance, and the labor contract can be terminate. However, unless the employee is required to give written notice to the enterprise 30 days in advance, the labor contract can be terminate. Therefore, an enterprise shortens the probationary period of employees and substantially deprives or restricts the employee's right to terminate the labor contract in written notice 3 days prior to the probation period.

Though in practice Probation period It is rare for employees to refuse to turn ahead in advance, but the above cases do exist. Therefore, probation is the agreed clause of the labor contract, and it is subject to mutual agreement. The employer can not unilaterally decide to shorten or extend the probation period. Otherwise, it is illegal.

However, if an enterprise extends its probation period in consultation with its employees and does not violate the stipulation of the relationship between the term of the labor contract and the proportion of probation period, is this extension violated by the law? There are two different views in practice: one view is that, as long as the two sides have reached a consensus, the extension of the probationary period is not in violation of the law, that is, it is lawful.

Another view is that even if the two sides agree to extend the probation period, and the probationary period after extension has not exceeded the legal limit, this practice is contrary to the labor contract law on the same. Employing unit It is illegal to stipulate only one probation period with the same worker. In judicial practice, two kinds of decisions or judgments exist.

Zhang believes that the second point of view is in line with the original intention of the legislation, that is, the practice of extending the probationary period between the enterprise and the staff is the second agreed probation period. If the probation period stipulated in the law has been fulfilled, the enterprise shall bear the liability of compensation to the employee according to the law, that is, the enterprise shall pay the employee compensation according to the full monthly salary of the employee during the probation period, according to the period that has been fulfilled over the statutory probation period.

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