Answer: Whether this kind of termination of employment is legal depends on the grounds on which the employee terminates. There are two kinds of circumstances.
The first situation is that the employer terminates the employment relationship with an employee on the ground that the employee in the probation period does not meet the hiring requirements. In this case, employment law does not stipulate that the employer’s notice of termination of the probation period must be made at or before the expiration of the probation period. Therefore, as long as the employer notifies the employee within a reasonable time after the expiration of the probation period, it can still effectively terminate the employment relationship.1Zhao Lei, Jiangxi Guanhao Commercial Operation Management Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Case, Civil Judgment of the Intermediate People’s Court of Fuzhou City, Jiangxi Province (2022) Gan 10 Min Zhong No.708. After the expiration of the probation, the employer notified the employee that he was not hired, and the employer claimed in the lawsuit that the reason for the termination was not meeting the hiring requirements in probationary period. The court finally found that the termination of the probation period was legal.
The second situation is that the employer terminates the employment relationship for serious violation of company rules or other reasons.2Other reasons stipulated in Article 39 of the Labor Law include corruption to damage the interests of the company, multiple employment relationships, employee crime, invalidity of the contract, etc.In this case, it means that the employer has acquiesced that the employee does not have a situation of not meeting the standard of hiring requirements, and that the employee have become a formal employee. Therefore, whether the dismissal is legal or not depends on whether the company has established the substantive grounds for the dismissal and whether the employer has followed a legal procedure in the dismissal.
Of course, the employer can terminate the employee¡¯s employment relationship immediately any time before the probation period expires on the ground of not meeting recruiting requirements. The Employment Contract Law only stipulates that employees should give three-day notice for resignation during probation period, but does not request a prior notice for employers to terminate employees. The judgments of courts across the county generally hold that employers have the right to terminate their employees immediately during the probation period.3Shanghai No.2 Intermediate People’s Court (2014) Hu Er Zhong Min San (Min) Zhong Zi No.89, a labor dispute between Shanghai Lianghong Printing Co., Ltd. and Tang. ¡°The Employment Contract Law stipulates that if the employee is proved to not up to hiring requirements during the probation period, the employer may terminate the employment contract immediately without any liability for damages or compensations.¡± Civil Judgment of Second Instance on Labor Dispute between Zhong Wencheng and Sunac (Beijing) Cultural Tourism Planning & Research Institute Co., Ltd. Civil Judgment of Beijing No.3 Intermediate People’s Court (2020) Jing 03 Min Zhong 12016 No. (The right of immediate termination of the employer within the probation period was upheld in the first instance. And the second instance decision upheld the first instance.) Civil Judgment of the Second Instance of the Labor Dispute Case between Li Ziqing and Rudy Van Gelderen Civil Judgment of Dongguan Intermediate People’s Court of Guangdong Province (2020) Yue 19 Min Zhong No.6795. ¡°The employee can terminate the contract by notifying the employer three days in advance during the probation period (the formal contract needs one month notice in advance). If the employer proves that the worker does not meet the hiring requirements, the employment contract can be immediately terminated (the formal contract requires serious violation of company rules, etc.).
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- 1Zhao Lei, Jiangxi Guanhao Commercial Operation Management Co., Ltd. Civil Judgment of the Second Instance of Labor Dispute Civil Case, Civil Judgment of the Intermediate People’s Court of Fuzhou City, Jiangxi Province (2022) Gan 10 Min Zhong No.708. After the expiration of the probation, the employer notified the employee that he was not hired, and the employer claimed in the lawsuit that the reason for the termination was not meeting the hiring requirements in probationary period. The court finally found that the termination of the probation period was legal.
- 2Other reasons stipulated in Article 39 of the Labor Law include corruption to damage the interests of the company, multiple employment relationships, employee crime, invalidity of the contract, etc.
- 3Shanghai No.2 Intermediate People’s Court (2014) Hu Er Zhong Min San (Min) Zhong Zi No.89, a labor dispute between Shanghai Lianghong Printing Co., Ltd. and Tang. ¡°The Employment Contract Law stipulates that if the employee is proved to not up to hiring requirements during the probation period, the employer may terminate the employment contract immediately without any liability for damages or compensations.¡± Civil Judgment of Second Instance on Labor Dispute between Zhong Wencheng and Sunac (Beijing) Cultural Tourism Planning & Research Institute Co., Ltd. Civil Judgment of Beijing No.3 Intermediate People’s Court (2020) Jing 03 Min Zhong 12016 No. (The right of immediate termination of the employer within the probation period was upheld in the first instance. And the second instance decision upheld the first instance.) Civil Judgment of the Second Instance of the Labor Dispute Case between Li Ziqing and Rudy Van Gelderen Civil Judgment of Dongguan Intermediate People’s Court of Guangdong Province (2020) Yue 19 Min Zhong No.6795. ¡°The employee can terminate the contract by notifying the employer three days in advance during the probation period (the formal contract needs one month notice in advance). If the employer proves that the worker does not meet the hiring requirements, the employment contract can be immediately terminated (the formal contract requires serious violation of company rules, etc.).