★ Brief
Huang joined the JW Company in Shanghai on 22 April 2020 and reported that he had performed well at his last employer, and then resigned for personal reasons.
During the probation, JW contacted the personnel officer of Huang’s previous employer and was unexpectedly told that Huang’s performance during the probation was not good and did not even meet the hiring requirements, but only in consideration of Huang’s need to find a job later, the two sides negotiated to do their own resignation.
The JW Company considered that Huang had concealed his poor performance at his previous employer during the interview and falsely claimed that his work performance was good, which should be considered as not meeting the hiring conditions. The company then terminated Huang’s labor contract on 19 May 2020 on the grounds that his work performance failed to meet the employment conditions during the probation.
Huang was not satisfied, so he applied for labor arbitration, and later sued the court.
★The verdict
The court held that, according to the law, the employer should bear the burden of proof in labor disputes arising from decisions made by the employer such as dismissal, expulsion, dismissal, termination of labor contract, reduction of labor remuneration, calculation of the length of service of the worker, etc. JW Company claimed that Huang’s work performance during the probation did not meet the requirements of the position, based on which the labor contract was terminated, but did not provide evidence to prove its claim, therefore the court held that the termination of the labor contract between the JW Company and Huang was illegal.
★ Comment of Lawyer
This case is a labor dispute arising from the dismissal during probation.
According to Article 39 of the Labor Contract Law: “The employer may terminate the employment contract if the worker has one of the following circumstances: (1) if it is proved during the probationary period that he/she does not meet the employment conditions”, the following elements need to be satisfied for the employer to terminate the employment contract on the basis that the worker does not meet the employment conditions: firstly, there should be confirmed by the employee. Secondly, the employer should have evidence to prove that the employee does not meet the employment conditions, such as the performance appraisal form, etc. Finally, the termination of the employment contract should be made before the end of the probationary period.
In this case, the JW Company concealed Huang’s poor work performance in the previous unit and concluded that Huang’s work performance failed to meet the employment conditions during his probation of employment. The JW Company should prove the existence of the employment conditions approved by Huang and that Huang’s work performance during the probation of this unit really did not meet the employment conditions, instead of proving Huang’s poor work performance in the previous unit and failure to meet the employment conditions of the previous unit, according to the law, but not to prove that Huang did not meet the employment conditions of the previous company.
If JW has evidence to prove that Huang was fraudulent during the interview, or even falsified his resume, according to the Labor Contract Law, if the labor contract is concluded or changed against the true intention of the other party by fraudulent or coercive means or by taking advantage of others, the labor contract will be invalid due to fraud.
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