【Commentary】Coinciding with the graduation job search season, most fresh graduates will experience a "probationary period" ranging from three months to six months when they enter the workplace. However, after the probationary period, some employees were dismissed on the grounds of "unqualified probationary period", unaware that they may have fallen into the trap of abusing the "unqualified probationary period" by the employer.
The Xicheng Court in Beijing recently heard a case. Xiao Wang, an e-commerce operation practitioner, signed a three-year employment contract with Company A and agreed that the probationary period would be three months. The probationary period was about to end, but Xiao Wang suddenly received a notice of unqualified assessment, and the company proposed to terminate the labor contract with Xiao Wang. Xiao Wang believed that he was not incompetent for his duties, so he filed labor arbitration on the grounds that Company A illegally terminated the labor contract, and later sued the court.
【During the same period】Liu Li, assistant judge of the fourth civil trial division of the Xicheng Court in Beijing
In this case, the employer submitted the chat records of the work group, the probationary period assessment form, and the live broadcast data of the e-commerce operation as evidence that he proved that the employee did not meet the employment conditions, but the evidence submitted by the company could not directly reflect Xiao Wang's unsuitability. In the absence of a clear and objective assessment content and assessment results, the company notifies the termination of the labor contract on the grounds that "the probationary period does not meet the employment conditions", which is illegal termination.
Many enterprises believe that "being proved to not meet the employment conditions during the probationary period" stipulated in Article 25 of the Labor Law means that the enterprise has the final say during the probationary period. The judge held that, in fact, this was a misunderstanding of the provisions of the law.
【During the same period】Liu Li, assistant judge of the fourth civil trial division of the Xicheng Court in Beijing
This is a misinterpretation of the letter of the law. First, it must prove that the employer has clearly informed the employee of the specific employment conditions when the employee joins the company, such as the amount of business that the employee should complete; The second is that the employer should provide evidence to prove that the employee's performance during the probationary period must be supported by specific data records and other materials, and the third is to prove that the employee's performance during the probationary period does not meet the prescribed employment conditions.
【Explanation】So what are the actual situations that can be considered "being proved to be ineligible for employment during the probationary period"?
【During the same period】Liu Li, assistant judge of the fourth civil trial division of the Xicheng Court in Beijing
The first is that the employee violates the principle of good faith and conceals or fabricates facts about his or her own basic information that affects the performance of the labor contract, including the employee's provision of false academic certificates, fake ID cards and other important personal documents.
Second, if there is a work error during the probationary period, the determination of the work error should be judged by the employer's rules and regulations and the content of the labor contract between the two parties, but the judgment standard for personal work errors during the probationary period will usually be moderately relaxed. The third is agreed upon by both parties, which belongs to other situations in which the employer assesses that the employee does not meet the employment conditions during the probationary period, which depends specifically on the agreement between the two parties.
【Commentary】The judge reminded that if the employer really believes that the employee's performance during the probationary period does not meet the employment conditions and wants to terminate the labor contract, it should pay attention to the fact that the employment conditions should be quantified, and the termination should be timely.
【During the same period】Liu Li, assistant judge of the fourth civil trial division of the Xicheng Court in Beijing
Employers should set quantifiable employment conditions to avoid letting the evaluation of assessment fall into personal subjectivity and should adopt employment conditions in written form. For example, the "New Employee Entry Instructions" and so on inform employees and clarify the job standards.
The second is that the termination needs to be timely, and if the employer proposes to terminate the labor contract after the probationary period, it cannot apply the provisions on the probationary period.
Li Jiali reported from Beijing
Responsible Editor: [Luo Pan]