Can Employees Agree To Probation After Re Employment?

Han Ying is a R & D staff of a technology company, whose R & D capability and business performance have been widely praised by colleagues and colleagues.

However, because of family reasons, she resigned from the unit in May 30, 2016.

In March of this year, she returned home from Thailand after finishing related affairs.

Recently, she plans to go back to work again, and the company agrees to continue to employ her.

However, the company offered to continue the trial for two months before deciding whether to sign a labor contract with her.

In this regard, she hesitated, and felt that the company was deliberately trying to make trouble for her: "an old employee who has worked in the company for more than 3 years is required to try again after six months?"

After a period of time, the workers return to their original units to work.

Is it possible to re arrange the probation period? Is it legal to try again? In response to these questions raised by Han Ying, Yao Junchang, lawyer of Beijing Wei Heng law firm, made detailed legal analysis in an interview with reporters.

Yao said that the probationary period is whether the employer can check whether the laborers meet the requirements of the relevant positions of the unit through the agreed time. It is also an inspection period for both parties to know each other.

In order to prevent abuse of probationary period by employing units, the nineteenth provision of the labor contract law stipulates that "the same employer and the same worker can only agree on a probation period".

However, there is a different understanding of this clause in practice.

One view is that when employees leave for a certain period of time, they will come back again, and can not agree on the probation period again when signing labor contracts.

The reason is "the same employer and the same worker".

No changes have taken place, and the workers' qualities and skills have been examined before the labor relations are continued.

If it does not meet the requirements, the unit will not be hired again.

Therefore, there is no need to re engage the employee.

Otherwise, it will infringe upon the interests of labourers.

Another view is that when the employees return to their original units, the two sides can agree on the probation period again when signing the labor contract.

The reason is that "the same employer and the same worker can only agree on one trial period". "Only one probation period can be agreed". It means that the two parties can only agree on a probation period during the duration of the labor contract.

Whether or not the workers' physical condition, labor skills and moral character are changing during their separation, whether they are competent for re entry posts or jobs, and whether they adapt to the familiar working environment need to be revisited.

Yao lawyer agrees with the first view. The reason is that the labor contract law clearly stipulates that "the same employer and the same worker can only agree on a probationary period". Unless the employer changes, otherwise, when the relevant judicial interpretation has not been clearly defined, it is against the relevant provisions of the law.

Related links:

The laborer has the following 5 statutory situations, where the employer and the worker terminate the labor contract stipulated in the service period, and the laborer shall pay liquidated damages to the employer in accordance with the labor contract agreement: first, the laborer seriously violates the rules and regulations of the employing unit; two, the laborer is seriously dereliction of duty, causing malpractice to the employing unit, and causing serious damage to the employing unit; three, the laborer establishes labor relations with other employing units at the same time, which seriously affects the completion of the work tasks of the unit, or the employer refuses to correct them; four, the laborers use fraudulent or coercive means or take advantage of danger, and use the units to conclude or change the labor contracts in violation of the true meaning; five, the workers are investigated for criminal responsibility according to law. If

Under these circumstances, the laborer has a major fault in the rescission of the labor contract, which is a realization of a disguised obstruction of the penalty clause in the service period. The law gives the employer the right to cancel the contract in advance and to claim liquidated damages.

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