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Anonymous users2024-02-07According to the provisions of the Labor Contract Law of the People's Republic of China, if an employer and an employee establish an employment relationship for the first time, the employer may conduct a probationary period on the employee, and the probationary period is for a certain period of time, so can the enterprise arbitrarily dismiss the employee as "incompetent" during the probationary period? The following is an answer to the relevant knowledge for the reader.
Can an enterprise arbitrarily dismiss an employee as "incompetent" during the probationary period?
According to the provisions of the Civil Labor Contract Law, if the employer cannot arbitrarily dismiss the employee on the grounds of incompetence during the probationary period, it is illegal to dismiss the employee at will.
Relevant legal provisions.
Labor Contract Law of the People's Republic of China
Article 19 Where the term of a labor contract is more than three months but less than one year, the probationary period shall not exceed one month; If the term of the labor contract is more than one year but less than three years, the probationary period shall not exceed two months; For fixed-term and indefinite-term labor contracts of more than three years, the probationary period shall not exceed six months.
The same employer and the same employee can only agree on a probationary period once.
Where a labor contract is for the completion of a certain work task or where the term of the labor contract is less than three months, a probationary period must not be stipulated.
The probationary period is included in the term of the employment contract. If the labor contract only stipulates a probationary period, the probationary period shall not be established, and the period shall be the term of the labor contract.
Article 21 During the probationary period, the employer shall not terminate the labor contract except for the circumstances provided for in Article 39 and Paragraphs 1 and 2 of Article 40 of this Law. If the employer terminates the labor contract during the probationary period, it shall explain the reasons to the employee.
According to the provisions of the Civil Labor Contract Law, if the employee is on probation, the employer cannot arbitrarily dismiss the employee on the grounds of incompetence, and it is illegal to dismiss the employee at will. Readers who need legal help are welcome to come for legal advice.
Resignation during the probationary period requires a few days in advance.
Can the company dismiss a probationary employee at will?
How to calculate the resignation process and salary during the probationary period.
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Anonymous users2024-02-06Can the boss fire an employee at will during the probationary period?
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Anonymous users2024-02-05Legal Analysis: Compensation can be claimed. During the probationary period, the company cannot terminate the contract at will, except as provided for in Article 39 and Article 40 (1) and (2) of the Labor Contract Law.
Legal basis: Labor Contract Law of the People's Republic of China
Article 39 The employer may terminate the labor contract if the worker falls under any of the following circumstances:
1) During the probationary period, it is proved that they do not meet the employment requirements;
2) Seriously violating the rules and regulations of the employer;
3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;
4) The worker establishes labor relations with other employers at the same time, which seriously affects the completion of the work tasks of the employer, or refuses to make corrections after being proposed by the employer;
5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;
6) Those who have been pursued for criminal responsibility in accordance with law.
Article 40 Under any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an additional month's salary:
1) The worker is sick or injured not due to work, and is unable to perform his original job or work arranged by the employer after the prescribed medical treatment period has expired;
2) The worker is not competent for the job, and is still incompetent for the job after training or job adjustment.
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Anonymous users2024-02-04Legal analysis: An enterprise cannot arbitrarily dismiss an employee on the grounds of incompetence during the probationary period, which is an illegal termination of the labor contract, and the employee can claim double compensation for the loss. The dismissal of the employee must have repeated reasons, and if the dismissal does not meet the employment requirements and the dismissal is carried out, sufficient reasons must be given.
Legal basis: Article 39 of the Labor Contract Law of the People's Republic of China The employer may terminate the labor contract if the employee falls under any of the following circumstances:
1) During the probationary period, it is proved that they do not meet the employment requirements;
2) Seriously violating the rules and regulations of the employer;
3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer;
4) The worker establishes labor relations with other employers at the same time, causing a serious impact on the completion of the work tasks of the employer, or refuses to make corrections after being raised by the employer;
5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law;
6) Those who have been pursued for criminal responsibility in accordance with law.
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Anonymous users2024-02-03Legal analysis: An enterprise cannot arbitrarily dismiss an employee on the grounds of incompetence during the probationary period, which is an illegal termination of the labor contract, and the employee can claim double compensation. The dismissal of the employee must have repeated reasons for loss, and if the dismissal does not meet the employment conditions, sufficient reasons must be given.
Legal basis: Article 39 of the Labor Contract Law of the People's Republic of China The employer may terminate the labor contract if the employee falls under any of the following circumstances: (1) it is proved that he does not meet the employment requirements during the probationary period; 2) Seriously violating the rules and regulations of the employer; 3) Serious dereliction of duty, malpractice for personal gain, causing major damage to the employer; 4) The worker establishes labor relations with other employers at the same time, which seriously affects the completion of the work tasks of the employer, or refuses to make corrections after being proposed by the employer; (5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of the Law; 6) Those who have been pursued for criminal responsibility in accordance with law.
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Anonymous users2024-02-02Legal analysis: An enterprise cannot arbitrarily dismiss an employee on the grounds of incompetence during the probationary period, which is an illegal termination of the labor contract, and the employee can claim double compensation. There must be repeated reasons for dismissal, and sufficient reasons must be given for dismissal if the dismissal does not meet the employment requirements.
Legal basis: Article 39 of the Labor Contract Law of the People's Republic of China The employer may terminate the labor contract if the employee falls under any of the following circumstances: (1) it is proved that he does not meet the employment requirements during the probationary period; 2) Seriously violating the rules and regulations of the employer; (3) Seriously derelict in one's position, engaging in malpractice for personal gain, or causing major harm to the employer; 4) The worker establishes labor relations with other employers at the same time, which seriously affects the completion of the work tasks of the employer, or refuses to make corrections after being proposed by the employer; (5) The labor contract is invalid due to the circumstances specified in Item 1, Paragraph 1 of Article 26 of this Law; 6) Those who have been pursued for criminal responsibility in accordance with law.
The probationary period is submitted in writing 3 days in advance; The employer is obliged to settle the salary and go through the resignation formalities, and the employee may terminate the labor contract by notifying the employer in writing 30 days in advance. The employee may terminate the labor contract by notifying the employer three days in advance during the probationary period.
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