Entering ChinaDuring the probationary period, can the employer dismiss the employee if he says he or she will be dismissed? According to the “Rule of Law Daily” report on March 2, Miao joined a company in Wuxi, Jiangsu Province as a purchasing manager. The two parties signed a labor contract, agreeing that the probation period is 3 months, and the salary during the probation period is 12,000 yuan/month. Just as the probationary period was about to end, the company terminated the labor relationship with Miao on the grounds that he had not passed the probationary period to become a regular employee. Miao was not satisfied, and after applying for labor arbitration to no avail, he sued to the People’s Court of Huishan District, Wuxi City. The court ruled that the company had illegally terminated the labor contract and should pay compensation of 12,000 yuan to Miao.
The probationary period is the inspection period agreed upon by the employee and the enterprise for the purpose of mutual understanding after the establishment of labor relations. The employer establishes an employment relationship with the employee from the date of employment, and the rights and interests of the employee during the probationary period are no different from those of the so-called “regular” employee. China’s labor law, labor contract law and other laws and regulations also have clear provisions on the protection of the rights and interests of workers during the probation period. In this regard, the judgment of this case once again reiterates the relevant principles and serves as a warning to the majority of employers, and Miao’s victory in the lawsuit also has reference significance for other employees to protect their rights.
In recent years, it is not uncommon for employers to abuse the “probationary period”, not only arbitrarily dismissing employees on the grounds of probationary period, but also failing to pay social insurance to employees during the probationary period, deducting employees’ wages, arbitrarily extending the probationary period, and so on. In order to save labor costs, some employers regard the probationary period as a “cheap period”, “casual period”, or “no need to use after the trial” – as a result, the probationary period has become a “shield” for some enterprises to wantonly infringe on the rights and interests of employees.
According to the relevant provisions of the Labor Law and the Labor Contract Law, if the employer and the employee terminate the contract through mutual agreement, the employee will receive half a month’s salary for less than 6 months of working years. If the employer dissolves or terminates the labor contract in violation of the law, it shall pay double the compensation to the employee.
However, in practice, many workers are often unwilling and afraid to defend their rights, and the reasons can be divided into three categories: first, the cost of rights protection is higher than the income from rights protection, and workers “cannot afford it”; Second, some employers threaten employees with “industry blackout”, so some employees are worried about “retaliation”; Third, there are also some workers who do not have a strong sense of rights protection and an inaccurate understanding of laws and regulations. As a result, there are fewer “more realistic” workers, and some unscrupulous enterprises have become more capricious.
To prevent the “probationary period” from becoming a “vacuum period” for the protection of workers’ rights and interests, the legislature should further improve relevant laws and regulations and refine the provisions on the protection of workers’ rights and interests during the probationary period in light of new phenomena and new problems. Relevant departments should also guide employers to enhance their awareness of legal employment and build a sound employment system. If the probationary period assessment is set up, the employee shall be clearly informed of the evaluation standards and methods, and if the probationary period is unqualified, there shall also be sufficient factual evidence, and the employee shall be informed before the expiration of the probationary period; At the same time, it is necessary to reduce the cost of protecting workers’ rights, unblock the channels for workers to protect their rights, increase the popularization of the law on workers’ rights and interests, and enhance workers’ awareness of law and rights protection, so that workers will no longer become “silent lambs” and enterprises that try to “exploit loopholes” will be fearful.
To build a harmonious labor relationship, it is necessary for the law to grow teeth and “support” workers through stronger measures; It is also necessary for enterprises to reverse backward concepts, cherish their own image and reputation, and sincerely respect every worker. Only in this way can both parties to the labor relationship achieve “two-way travel”, and the probationary period can return to the original intention of the establishment of “two-way choice”.
