According to the opinions on issues relating to the implementation of the Labor law of the PRC given by the former Ministry of Labor, “the purpose of the probation period is for mutual inspection and choice by the employer and the employee and should not be more than six months.” The opinion also states: “The probation period shall be included in the duration of the labor contract.” This means, employees in the probation period are also protected by the labor law. Companies should learn about the legal provisions relating to the probation period to avoid any legal disputes and pay special attention to the following:
The term of the probation period
Article 19 of the Labor Contract Law of PRC stipulates: Where the term of a labor contract is above three months but less than one year, the probation period thereof shall not be more than one month. Where the term of a labor contract is above one year but less than three years, the probation period thereof shall be less than two months. With respect to a labor contract with a fixed period of above three years or without a fixed period, the probation term thereof shall not be in excess of six months.
An employer can only stipulate one probation period with the same worker.
No probation period may be stipulated in a labor contract with a period to complete prescribed work or a labor contract with a fixed period of less than three months.
The probation period shall be contained in the terms of labor contract. If only the probation period is stipulated in a labor contract, it shall be untenable and the said period shall be the term of the labor contract.
The salary level during probation
Article 20 of the Labor Contract Law of PRC stipulates that the wages of employees during the probation period shall not be lower than the minimum wage for the same position in the same company or 80 percent of the wage stipulated in the labor contract, and shall not be lower than the minimum wage standard at the place where the company is located.
The termination shall be in line with the law.
Article 39 of the Labor Contract Law of PRC stipulates that if an employee is proved to be ineligible for employment during the probation period, the employer may terminate the labor contract. You may review this article for more information: How to Fire an Incompetent Employee Properly?
Therefore, in order to legally terminate the labor contract during the probation period, the company should pay attention to the following aspects:
- Work out the legal and specific recruiting conditions. There shall be no violation of the mandatory regulations, such as non-discrimination of employment based on sex, age and marital status etc.
- Recruiting conditions should be published in advance. The company should not only let employees know, but also keep evidence as proof thereof. The company may choose to do one of the following:
- a）When recruiting, show the employees the recruiting conditions and job descriptions, and ask for acknowledgement;
- b) Before the establishment of employment relations, send a letter of employment to the employee to express the recruiting conditions and job descriptions, and ask for acknowledgement thereof;
- c) Expressly state the requirements of employment in internal regulations or labor contracts, and show the internal regulations to the employees as an annex before the signing of the labor contract.
- There should be evidence showing that the employees are unqualified. The decision of whether an employee qualified or not should be done based on objective assessment instead of subjective feelings. Therefore, it is very important for the company to set up and improve a strict evaluation system. Quantifiable assessment is highly recommended. If it is impossible to quantify the assessment in certain sectors, then relevant staff should be organized to conduct the evaluation to ensure a fair result.
- Dismissal during the probation period. Please take note that a company must assess the performance of the employee during the probation period and serve the employee with the final decision by the end of the probation period. Some companies choose to start the assessment after the probation period, as a result, they actually give up their chance to dismiss any unqualified employee during the probation period.
Tips:
Labor Contract Law of PRC has made strict provisions regarding termination of labor contracts by the company. In most employment disputes，the burden of proof is on the company. Therefore, the company must do all the above-mentioned procedures in strict accordance with the law, and must keep the appropriate record of each procedure as evidence. Actually, these two steps are pretty important for the company in all disputes.
