Why is the probationary period "distant"?
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The law stipulates that the same employer and the same worker can only agree on a probationary period.
However, in judicial practice, why do labor disputes such as repeatedly agreeing on the probation period and extending the probation period often occur?
I joined the same company for more than two years, signed 5 labor contracts, and agreed on 5 probation periods, of which 4 were extended... Recently, in a labor dispute case concluded by the Beijing Third Intermediate People's Court, Some workers have encountered strange operations during the probationary period like the employer.
Article 19 of the Labor Contract Law clearly stipulates that the same employer and the same employee can only agree on a probationary period once.
However, employers often request to negotiate with workers to extend the probationary period on the grounds that they are not qualified for the probationary period.
How long should the trial period be?
Under what circumstances can the probationary period be extended?
Legal restrictions prevent repeated "trial" workers
Mr. Chen joined an engineering company in Beijing on June 7, 2018.
After more than two years of employment, the company and Mr. Chen signed five three-year labor contracts in June 2018, December 2018, June 2019, December 2019, and June 2020, and agreed at the same time. 5 trial periods.
Subsequently, the company sent notices of extension of the probationary period to Mr. Chen on September 4, 2018, March 5, 2019, March 2, 2020, and September 3, 2020, respectively, proposing to extend the original agreement for 3 months. The trial period is extended to 6 months.
On December 28, 2020, the company issued a notice of dismissal during the probationary period to Mr. Chen on the grounds that he was incompetent for the post, stating that "after a 6-month probationary period assessment, and combined with your performance during the probationary period, the company I think that you are not qualified for the position of project development manager, and it is now decided to dismiss you."
After working for more than two years until he was terminated by the company, he still received a "Notice of Dismissal during the Probation Period".
Mr. Chen filed an application for labor arbitration, and the company later filed a lawsuit with the court.
Why is Mr. Chen's probationary period being continuously extended?
The company stated that it was Mr. Chen who repeatedly pleaded with the company to extend the probationary period and signed labor contracts many times, which led to the agreement on the probationary period many times.
According to the salary payment record provided by Mr. Chen, the monthly salary of 8,000 yuan was stipulated in the labor contract of both parties, but the company has always paid the salary according to the 5,000-yuan salary standard.
In this regard, the court held that the company's practice seriously violated the provisions of the probationary period in the Labor Contract Law, and should bear the corresponding legal responsibility.
In addition, the court also stated that re-signing a labor contract, an employee voluntarily applying for an extension of the probationary period, or reaching an agreement with the employee to extend the applicable period are not legitimate reasons for breaking through the number of probationary periods.
Employers need to be cautious when extending the probationary period
The so-called probationary period refers to the inspection period agreed upon through negotiation and mutual understanding between the employer and the employee after the establishment of the labor relationship.
Then, if the worker fails the probation period, can the employer extend the probation period with the employee's consent?
Huang Xu, a lawyer at Beijing Tianyuan (Hefei) Law Firm, suggested that employers should be cautious about extending the probationary period.
According to the law, the length of the probationary period is limited by the term of the labor contract. For labor contracts with a fixed term of more than three years and an indefinite term, the probationary period shall not exceed six months.
The reporter combed and found that regarding such cases, the views of judicial practice in various places are not unified.
In 2015, Mr. Wu from Beijing joined a company in Beijing as human resources supervisor.
The two parties agreed that the probationary period will start on August 19, 2015 and end on November 18, 2015.
On November 27 of the same year, the two parties signed an agreement to extend the probationary period and decided to extend Mr. Wu's probationary period to December 31, 2015.
Later, the company claimed that the extension of the probation period was legal on the grounds that the extension of the probation period was agreed by both parties and the extended probation period did not exceed the statutory period.
However, the court found that this behavior clearly violated the mandatory provisions of existing laws, and ruled that Mr. Wu will be rectified from November 19, 2015.
In a labor dispute case concluded by the Intermediate People's Court of Jiaxing City, Zhejiang Province in 2016, the court gave a different judgment.
Ms. Yang agreed to extend the probationary period to six months after negotiation with the company due to the unqualified assessment results during the probationary period.
In this regard, the court held that since Ms. Yang failed to obtain the employer's affirmation during the first probationary period, the employer's extension of the probationary period actually gave Ms. Yang a new job opportunity, which was beneficial to the laborer. And the consent of the workers was also obtained.
More importantly, since the two parties signed a three-year labor contract, the probation period should not exceed six months, so the employer's extension of the three-month probation period did not violate the prohibition of the law. It is stipulated that the extension is legal and valid.
"If the probation period extended by the employer exceeds the statutory probation period and has actually been fulfilled, the employer shall pay compensation to the laborer according to the monthly salary standard upon expiry of the probationary period, and the laborer has the right to apply to the labor arbitration department for arbitration and require the employer to pay Corresponding compensation." Huang Xu said.
Extension of trial period in special circumstances
"Combining with existing laws, regulations and judicial practice, it is generally not recommended to extend the probationary period, but some provinces and regions support the extension and suspension of the probationary period under 'special circumstances'." Partner of Beijing JunZeJun Law Firm People's lawyer Li Yi told reporters.
According to item 5 of the "Answers of the Beijing Higher People's Court and the Beijing Labor and Personnel Dispute Arbitration Commission on the Application of Law in the Trial of Labor Dispute Cases During the Prevention and Control of the Novel Coronavirus Pneumonia", workers cannot return to work due to objective reasons during the probationary period. When going to work, the employer can adopt a flexible trial inspection method to assess whether the worker meets the employment conditions.
If a flexible inspection method cannot be adopted to achieve the purpose of the probationary period assessment, the employer and the employee shall negotiate to extend the probationary period, which does not violate the spirit of the labor contract law that "the same employer and the same employee can only agree on one probationary period".
Article 15 of the "Regulations on Labor Contracts of Jiangsu Province" stipulates that if an employee falls ill during the probationary period or needs to be stopped for treatment due to non-work-related injuries, the probationary period shall be suspended during the prescribed medical treatment period.
Li Yi told reporters: "There is a court decision that if the resigned employee returns to the original unit, the employer can agree to a probationary period again due to the obvious difference in job responsibilities or the longer leaving time."
Although the law has special provisions on the extension of the probationary period, in general, as an employer, it should strictly abide by the legal restrictions on the number of probationary periods.
As the Beijing Third Intermediate People's Court wrote in the judgment in the aforementioned case, "the same employer and the same worker can only agree on a probationary period", which aims to prevent the employer from repeatedly probating the worker and harming labor by strictly limiting the number of probation periods. the legitimate rights and interests of the person.
Qu Xinyue