Can Termination during Probation be Arbitrary?

Nutshell

Ms Zhang works in a mall counter established by A Suit Company as a shop assistant from May 30^th, 2008. Both parties entered into labor contract which provided that Ms Zhang’s work place is the marketing points established by A Suit Company, and the position is shop assistant. The term is two years and the probation is 2 month from May 30^th ,2008 to July 29^th ,2008. The basic salary is 1500 yuan and during probation the basic salary is 1200 yuan, excluding the commission. If the following situations occur, party A can terminate the labor contract : A. Party B’s ability (technique, performance, attitude, discipline, health situation etc.) is not satisfying the conditions for employment.

On July 14^th,2008, A Company conducted a test for Ms Zhang. The test table provides the grade is 70 score. The demerit is lack of spirit, no make-up and outfit needs improvement.

On July 25^th, 2008, Ms Zhang received the termination notice issued by A Company on July 23, 2008, the content of which is through the two months probation, the company thinks you’re unqualified with the conditions for employment, the company hereby terminate your contract on the base of Art 39 of the Labor Contract Law.

Ms Zhang brought arbitration to the committee asking for severance.

 

Issue

The issue in this case is whether the reason of the employer to terminate the employee established?

A Company defends that the labor contract entered by both the company and Miss Zhang prescribed the probation condition.  Ms Zhang scored 70 the test performed by A Company on July 14^th ,2008 , but lack of spirit and the outfit is bad. As a shop assistant in the mall, spirit and outlook is crucial, therefore A Company believe that Ms Zhang not to satisfy the condition for employment.

Ms Zhang thinks she is responsible for the job, wearing make-up everyday, with clean outfit. Even through the test score, she passed 60, the company has no base to terminate her.

 

Judgment

The arbitration tribunal thinks the employer shall explain the reason to the employee for termination during probation. But A Company didn’t present the reason and proof for termination. Therefore, it ruled that A Company shall pay the termination damage to Ms Zhang.

 

Comment by Lawyer Tang

There are still quite a lot employers have misunderstandings on termination during probation so far, such as, some company thinks the employer can be terminated arbitrarily during probation without severance. Even an angry word can lead to direct termination. Some company only sign probation contract. Some company arbitrary pays income for the employees. Some company set longer probation then the law. Some company only pays social insurance after the probation is over. These all lead to the termination on probation becomes a labor dispute hardest hit.

How to prove the employer is satisfying the condition in this case is a difficulty. The crucial point is whether both parties agreed the conditions for employment in written form, which can include the ability, cooperation, attitude, even presenting true document and certification. If the company shall prove an employee is not satisfying the condition, it shall go through a test process according to the performance during probation. Otherwise, once the probation is due, the employee is considered satisfying the conditions.

In this case, if outlook and make-up is this important to the company, it shall inform the employee explicitly the requirements, and assume the responsibility of proof when the employee doesn’t agree the judgment for the tribunal.

Remember not to terminate self-willed or arbitrary in termination during probation.