Labor System: Agreed To Extend The Probation Period Invalid

In August 2014, Zhu entered a printing machinery Co., Ltd. to engage in sales work.

According to the contract, Zhu has a monthly salary of 5000 yuan, the contract period is from August 1, 2014 to July 31, 2016, the probation period is from August 1st to September 30th, the monthly salary of the probation period is 4000 yuan, and the sales index of Zhu is 100 thousand yuan during the probation period. If the sales target is not completed, it is deemed to be unsuitable for the employment conditions, and the unit has the right to terminate the labor contract.

1 months later, Zhu completed a sales target of 60 thousand yuan.

The unit thought that although Zhu did not complete the sales target, the comprehensive performance was acceptable, so he agreed to extend the probation period with Zhu for another 1 months.

Unexpectedly, in October 31st, Zhu had not yet completed the sales quota of 100 thousand yuan, and the unit then released the labor relations of Zhu according to the first provisions of the thirty-ninth labor contract law.

Zhu believed that the unit was illegally released, and applied to the local labor and personnel dispute arbitration committee for payment of the illegal labor contract compensation.

After hearing the trial, the arbitration tribunal concluded that

"The nineteenth provision stipulates that the upper limit of the trial period for Zhu and the unit is 2 months. Although the two sides have agreed to extend the probation period for 1 months, they have violated the mandatory provisions of the law and should be invalid. Therefore, Zhu was in the normal labor contract in from October 1 to 31, 2014.

The thirty-ninth first stipulates that if the employee is proved to be out of employment during the probation period, the employer can rescind the labor contract.

The regulations only aim at the workers during the probation period. When the printing machinery company terminated the labor contract with Zhu in October 31, 2014, the trial period of Zhu had passed, so the printing machinery company applied the stipulation to terminate the labor contract with Zhu.

The Arbitration Commission decided to support Zhu's arbitration request.

Article nineteenth of the labor contract law stipulates that the term of a labor contract is less than 1 years with a period of more than 3 months.

It shall not exceed 1 months; if the term of labor contract is less than 3 years or more than 1 years, the probation period shall not exceed 2 months; the probation period of 3 years or more with no fixed time limit shall not exceed 6 months.

That is to say, according to the length of the labor contract, the upper limit of the corresponding probation period is generally considered mandatory in law.

Once the upper limit of the probation period is exceeded, even if there is agreement between the employers and the employees, it is also considered invalid.

If a unit finds that the laborer does not meet the recruitment requirements during the probation period, he shall notify the worker to terminate the labor contract within the probation period. After the probation period expires, the labor relations can not be terminate by applying the thirty-ninth first items.

If a unit needs to terminate the labor contract with the employee on the grounds of incompetence, fortieth or second items shall be applied, that is, the worker is not competent, and after training or adjustment, he is still not competent.

The employer may terminate the labor contract in writing 30 days ahead of time and notify the worker himself in writing or pay the employee 1 months' salary.