A company normally prefers an employment contract specifying the probation period for an employee because they would think they can terminate an employee during the probation period without any cause. We have to point out that is misunderstanding about PRC laws.
According to Article 21 of PRC Employment Contract Law, an employer may not terminate an employee’s employment contract during his/her probation period, unless the employee is characterized by any of the circumstances specified in Article 39 or Item (1) or (2) of Article 40, namely:
(1)
the employee is proven not to satisfy the conditions of employment during the probation period;
(2)
the employee seriously violates the employer’s rules;
(3)
the employee commits a serious dereliction of duty, practices graft or engages in embezzlement, causing material damage to the employer;
(4)
the employee simultaneously has an employment relationship with another employer, seriously affecting the completion of his/her work tasks with the employer, or, after having the same mentioned to him/her by the employer, this employee refuses to rectify the matter;
(5)
the employee used means such as deceit or coercion, or take advantage of the employer’s plight, to cause the employer to conclude an employment contract or amend the same in a manner contrary to the employer’s true intent;
(6)
the employee has criminal liability pursued against him/her in accordance with the law;
(7)
the employee contracted an illness or sustained a non-work related injury and after the expiration of the set medical period he/she is unable to return to his/her original job or engage in other work arranged for him/her by the employer; or
(8)
the employee is incompetent and after undergoing training or an adjustment of his/her position remains incompetent.
Thus, a company is entitled to terminate an employee during his/her probation period only in the foregoing circumstances. Apparently the company will find it difficult terminating an employee even during his/her probation period.
However, we would believe that the company could terminate an employee by proving the employee does not satisfy the conditions of employment during the probation period. In order to do that, the company should, when entering into labor contract, give the employee an acknowledgement letter, which lists conditions of employment, such as professional qualification, language skill and so on, and ask the employee to sign it. If the employee fails to satisfy the conditions of employment, then the company can use the signed acknowledgement letter to prove the employee can not meet the conditions of employment.
By Adam Li