★Case Summary
On May 1, 2017, Zhu signed a labor contract with Company Z, with a contract period from May 1, 2017, to January 8, 2020. The probation period was from May 1, 2017, to July 8, 2017.
On May 28, 2020, Zhu applied for arbitration to the District Labor and Personnel Dispute Arbitration Committee, requesting Company Z to pay compensation for violating the statutory probation period. The arbitration decision did not support Zhu’s request. Dissatisfied with the decision, Zhu brought the case to court.
★ Court Ruling
The court ruled that according to the law, if the labor contract has a term of more than one year but less than three years, the probation period shall not exceed two months. If the employer violates the law and agrees on a probation period with the employee, the labor administrative department shall order correction. If the illegally agreed probation period has already been performed, the employer shall pay compensation to the employee based on the monthly salary after the probation period, for the period exceeding the statutory probation period.
In this case, the labor contract between Zhu and Company Z had a term from May 1, 2017, to January 8, 2020, which exceeded one year but less than three years. Therefore, the probation period agreed upon by both parties should not have exceeded two months. However, Company Z and Zhu agreed on a probation period from May 1, 2017, to July 8, 2017, which was actually performed, clearly violating the law. Thus, Zhu’s request for compensation for the unlawfully agreed probation period was in accordance with the law. Company Z should pay compensation to Zhu for the period exceeding the statutory probation period, which is from July 1, 2017, to July 8, 2017.
★Lawyer Tang Yi’s Comment
Many people are aware of the clear provisions regarding the probation period in Article 19 of the Labor Contract Law, but they may not know that employees can claim compensation if the employer unlawfully sets the probation period.
According to Article 83 of the Labor Contract Law, if the employer unlawfully agrees on a probation period, the labor administrative department shall order correction. However, if the unlawfully agreed probation period has already been performed, the employee can demand the employer to pay compensation based on the monthly salary after conversion to a regular employee, for the period exceeding the statutory probation period.
As employees, understanding this provision helps safeguard their legitimate labor rights, while as employers, it is necessary to be aware of this provision to regulate the rules and management regarding the probation period, to avoid unnecessary risks and losses.
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