To avoid employment disputes during the probation period, it is important for companies to understand and comply with the legal provisions related to probation. Here are some tips to consider:
1.Probation Period Duration
The duration of the probation period should be in accordance with the provisions of the Labor Contract Law of the People’s Republic of China (PRC). The law specifies that the probation period should not exceed one month for labor contracts with a term between three months and one year, not exceed two months for contracts between one and three years, and not exceed six months for contracts above three years or without a fixed period. Additionally, only one probation period can be stipulated with the same worker, and no probation period is allowed for contracts with a fixed period of less than three months.
2. Salary During Probation
The wages of employees during the probation period should not be lower than the minimum wage for the same position in the same company or 80% of the wage stipulated in the labor contract. It should also not be lower than the minimum wage standard in the location where the company is situated.
3. Termination in Compliance with the Law
If an employee is found to be ineligible for employment during the probation period, the employer may terminate the labor contract in accordance with Article 39 of the Labor Contract Law of the PRC. To legally terminate the contract during probation, the following aspects should be considered:
1. Define
Clearly define and document the recruiting conditions, ensuring compliance with non-discrimination regulations.
2. Publish
Publish the recruiting conditions in advance, either by showing them to employees during recruitment, sending a letter of employment with the conditions, or including them in internal regulations or labor contracts.
3. Maintain evidence
Maintain evidence demonstrating that the employees are unqualified based on objective assessments. Establish and improve a strict evaluation system, preferably with quantifiable assessments or, if not feasible, through organized evaluation by relevant staff to ensure fairness.
4. Timely dismissal
Assess and make a final decision on the employee’s performance by the end of the probation period to enable timely dismissal if necessary.
It is crucial for companies to adhere to the Labor Contract Law and follow these procedures strictly. In employment disputes, the burden of proof often falls on the company. Therefore, it is important to keep records of all procedures and maintain appropriate evidence. These steps are essential in effectively handling disputes and ensuring compliance with the law.
