New Trends in the Judiciary: How to Dismiss Employees during the Probation Period?
Citation | jd0109 |
Published date | 29 November 2018 |
Date | 29 November 2018 |
Subject Matter | LABOR & EMPLOYMENT |
2020/11/10 New Trends in the Judiciary: How to Dismiss Employees during the Probation Period? | China Law Insight
https://www.chinalawinsight.com/2018/11/articles/labor-employment/new-trends-in-the-judiciary-how-to-dismiss-employees-during-the-probation-p…
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CHINA LAW INSIGHT
New Trends in the Judiciary: How to Dismiss
Employees during the Probation Period?
By King & Wood Mallesons on November 29, 2018
By Linda LIANG, LIU Piao King & Wood Mallesons
On April 24, 2017, Beijing Higher People’s Court and Beijing Labor and Personnel
Dispute Arbitration Commission jointly issued the Answer on the Legal Application of
Labor Dispute Cases (hereafter referred to as “the Answer”). Article 11, Section 3 of the
Answer adopts a lenient attitude towards the standard of reviewing unlawful dismissals
during the probation period. The Answer clearly points out that, when determining
whether laborers meet the recruitment conditions, the standard applied during the
probation period may be moderately lower than that after the expiration of the probation
period. More than one year has passed since the Answer was issued, by reviewing recent
judgments made by arbitration commissions and courts on dismissals during the
probation period, further analysis is made regarding new changes as below.
The Answer establishes a new standard
According to the provisions of Labor Contract Law of the People’s Republic of China,
employers may terminate the employment contract without making any severance
payment where the employers prove that employees have failed to meet the recruitment
conditions during the probation period. However, for a long time, laws and regulations had
no clear provisions of what suffices for “not meeting the recruitment conditions”. In
practice, arbitration commissions and courts had different opinions about the standard of
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