Legal specialist was dismissed during the probationary period

There are many issues about the probationary period, such as the duration of the probationary period, the number of times the probationary period is agreed upon, the legal consequences of the illegal agreement during the probationary period, etc. We have already talked about them in the Himalayas, so we will not repeat them here.

This issue is about the termination of the probationary period, i.e. the employer terminates the employment contract for the reason that the worker is proven not to meet the employment conditions during the probationary period.

Brief description of the case

Deng signed a written labor contract with Company A on August 16, 2017, which agreed that Deng was engaged in the post of legal specialist for a probationary period of 6 months.

November 16, 2017, A company to Deng issued a "probationary period extension confirmation", the document contains "Deng in the probationary period due to the communication and expression ability is not strong, work coordination ability is not good, unfamiliar with the workflow, work experience, and recruitment requirements have a gap, can not reach the legal affairs risk control department legal specialist position requirements, to extend the probationary period of three months (extended to February 15, 2018)", both parties signed to confirm.

January 19, 2018, A company according to the requirements of the group and the company's job needs, for the company's internal open competition. Deng participated in the competition for the position of "Operations Control Department - Project Due Diligence and Reviewer". In the process of interview and assessment, Deng's performance reflected unfamiliarity with the job duties and business processes of the position, and on January 23, 2018, Company A issued the "Public Notice of Proposed Candidates for Public Competitive Recruitment of Company A" stating that Deng was "to be employed".

After the posting, Company A arranged for Deng Mou to engage in relevant administrative work, and related work guidance and training of all employees.

February 5, 2018, A company to Deng issued "A company probationary period failed to leave notice", to "according to the company's probationary period transfer assessment, inspection results, given your probationary period does not meet the requirements of the post, the company decided to leave the study for the reason that Dengmou for separation procedures.

Deng did not come to work since February 6, 2018.

Deng considered the content of the notice illegal, applied to the Labor Dispute Arbitration Commission for labor arbitration, requesting the restoration of labor relations, and the Arbitration Commission made an award on April 26, 2018, restoring the labor relations between Deng and A company.

As Company A did not accept the result of the award, it appealed to the court.

【Dispute focus

Whether it is legal for Company A to terminate the labor contract relationship with Deng during the probationary period.

Court of First Instance】Legitimate to terminate

During the probationary period, the workers should follow the management and assessment rules of the employer, clarify the job duties and accept the assessment of the unit, and the employer should decide whether to transfer the employees according to their job competency.

Company A submitted relevant evidence to the court of first instance to prove that Deng did not meet the assessment requirements during the probationary period, and in the company's interview and assessment of Deng, Deng showed that he was not familiar with the business of the position applied for, the job duties were not determined, and after the adjustment of the position and the guidance and training of the staff still could not be competent for the job, and Company A issued a "notice of unqualified departure during the probationary period" to Deng on February 5, 2018, which did not Violation of the employer in the employee's probationary period for failure to meet the conditions of employment termination of the labor contract, in line with the facts and legal basis.

Evidence: labor contract book, confirmation of probationary period extension to regularization, A company's 2018 internal integration of public competition announcement, public announcement of public competition inspection candidates, A company's probationary period unqualified separation notice, attendance sheet, Deng Mou interview audio information and text materials, company training site photos, etc.

The opinion of the court of the second instance] upheld the original judgment and rejected the appeal

According to Article 39(1)(a) of the Labor Contract Law of the People's Republic of China, the employer may terminate the labor contract if the worker is proved to be unqualified for employment during the probationary period.

In this case, Deng signed a three-year written employment contract with Company A, which determined that Deng's probationary period was from August 16, 2017 to February 15, 2018. The agreement of the probationary period does not violate the relevant provisions of labor law. According to the "Confirmation Letter of Probationary Period of Company A", Deng Mou had "poor communication and expression ability", "poor work coordination ability", and "unfamiliar with work process" during the probationary period. Deng also signed the confirmation letter to confirm that he was not qualified for the job requirements. Deng did not meet the conditions of employment during the probationary period, A company in the probationary period to terminate the employment relationship with Deng is justified by law.

After Deng Mou received the "notice of unqualified departure during the probationary period" issued by Company A, he did not go to work at Company A since February 6, 2018, and the labor relationship between the two parties was terminated. The Court does not support Deng Mou's request to continue to perform the labor contract with Xintiandi Company without factual and legal basis. After Deng left the company, he worked in company B. Given this, Deng's appeal request for the continuation of the labor contract with company A could not be realized objectively. Therefore, the Court did not accept Deng's appeal opinion that he should continue to perform the labor contract with Company A.

The opinion of the Court of Re-examination (Hunan High Court)

According to the "A company's probationary period extension confirmation", Deng Mou was proved to be incompatible with the employment conditions during the probationary period, after adjusting the position and training guidance, but also can not meet the requirements of the probationary period conversion, in this case, the trial court found that the "probationary period unqualified notice of separation" issued by A company to Deng Mou does not violate the legal provisions and is not inappropriate.

Ruling: rejected Deng's application for retrial.