New Trends in the Judiciary: How to Dismiss Employees during the Probation Period?

• Author: Linda LIANG,LIU Piao
• Published date: 29/11/2018
• Citation: jd0109
• 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

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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