★Case Summary
On March 14, 2022, Tan entered a medical company and assumed the position of a pharmacist. Starting from March 15, Tan was unable to go to the company for work due to epidemic control measures in their residential area. As of March 23, Tan had still not returned to work. The company sent a notice to Tan, stating that because Tan had not completed the procedures for returning the unemployment benefits after reporting to the company and had also applied to extend the receipt of unemployment benefits through an online platform, the company was unable to handle the employment registration procedures for Tan. Therefore, after a one-week probation period, the company considered that Tan did not meet the company’s requirements and thus terminated the labor contract with Tan.
Tan was dissatisfied with the termination and argued that there was no agreement between the two parties regarding employment conditions. At the time, Tan had just started working and was undergoing job training. Since Tan could not confirm whether they would be ultimately employed, they did not handle the relevant procedures for unemployment benefits.
As a result, Tan applied for arbitration to the Labor and Personnel Dispute Arbitration Commission at the place of company registration, demanding a compensation of 7200 yuan for the illegal termination of the labor relationship. The case was later brought to court.
★Court Verdict
After hearing the case, the court held that when an employer terminates a labor contract based on Article 39(1) of the Labor Contract Law, the employer must prove the following conditions: there is an agreement between the employer and the employee regarding the conditions of probationary employment, and the employer has confirmed through assessments or other means that the employee does not meet the conditions for employment.
In this case, the medical company claimed that Tan did not return the unemployment benefits and extended the payments without evidence proving that both parties had agreed on such a condition as part of the probationary employment. Moreover, there is no necessary connection between whether Tan is suitable for the job requirements and the matter of returning unemployment benefits. Therefore, the company’s claim that Tan did not meet the conditions for probationary employment is not supported by sufficient evidence. As a result, the court did not accept the company’s argument, and the company’s reason for terminating the labor relationship with Tan was not valid, constituting an illegal termination.
★Comment by Lawyer Tang Yi
The probationary period is a period during which both the employer and the employee understand each other and make mutual selections. The conditions for employment refer to the probationary assessment criteria agreed upon by the employer and the employee.
Here, I would like to remind all employers that the termination of an employment contract during the probationary period should also comply with relevant legal provisions. It is advisable for both parties to make a written agreement on the conditions of employment, with signatures for confirmation. The final confirmation of whether the employee meets the conditions for employment should be based on assessments or other methods. It is recommended to clearly define job responsibilities, job skills, professional certificates, education degrees, work abilities, work attitudes, integrity, professional ethics, social security records, and other requirements for entry procedures and compliance with rules and regulations in the conditions of employment.
Some employers may have the need to conduct background checks on the work experience of employees. It is recommended to conduct such checks before entry, with the prior consent of the employee, while also paying attention to the protection of personal information.
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