In the case of the illegal dismissal of employees by a female executive in Beijing, according to the announcement of the company involved, Sun was a probationary employee.
The company said that because Sun was incompetent in his work, the company decided not to pass the probationary period. After consensus, the two parties signed an agreement on the termination of labor relations on December 1, and the company paid the full amount of November wages and severance compensation on December 8 in accordance with the agreement.
I believe that many people are confused when they see the announcement.
Are they incompetent to work, and they still negotiate?
I am incompetent to work, and I still have to pay compensation?
Probationary employees, don't they just quit if they want to?
Judging from the dialogue in **, this female executive does not understand the law, but really understands the law.
She really couldn't find a legal reason for dismissing the probationary employee (or the evidence was insufficient), so she directly admitted that she was illegally dismissed.
She should also be aware of the consequences of illegal termination, which may be 2n compensation, or she may resume the labor relationship and continue to perform the labor contract. However, it needs to go through the process of first adjudication and second instance.
Judging from the current actual situation, the situation of queuing for labor arbitration is relatively normal.
Whether it really takes 2 and a half years to really not necessarily. However, it is likely to be between 6 months and 2 years.
In fact, judging from this incident, we already have the answer in our hearts.
Because no matter how arrogant the female executive is, she can't hide her helplessness.
She also knows that dismissing a probationary employee is really not a matter of quitting if she wants to.
It is true that the employer may make unilateral termination without the consent of the employee, but if there is no statutory reason and evidence for unilateral termination, it will eventually have to bear the consequences of illegal termination.
However, the consequences of this violation need to be claimed by the employee through labor arbitration.
Therefore, if you talk to the company about severance compensation, you will open your mouth for 2n, and the company will basically not step on you.
Because through the first adjudication and second trial, it can be delayed for at least 6 months to 2 years, and the Intermediate People's Court has ruled that the company can still delay and not pay, and then you go through the enforcement process, and the company will have no problem paying in the end. Because the company doesn't need to pay an extra penny of interest.
In that case, why give you 2n directly?
I think the main reason why it is easy to misunderstand the dismissal of probationary employees is the mentality of both parties.
Some workers think that the probationary period is the run-in period between the two parties, and it is reasonable for either party to terminate the probation if they feel that it is not suitable.
Some managers and HR who do not understand the law in the employer also think so.
Due to the weak mentality, it will be relatively smooth to negotiate with most employees during the probationary period.
This makes some managers and HR have a false impression:Employees on probation, don't just quit if they want to?
The so-called dismissal of an employee, in the field of labor law, is called unilateral termination by the employer.
For unilateral termination, there is no need to discuss with the employee, and the dismissal notice is directly issued, served, and then the termination process is completed.
But the most important thing is the statutory grounds for rescission.
In Article 21 of the Labor Contract Law, the requirements for the unilateral termination of the labor contract of an employee during the probationary period by the employer are very clear:
Termination of the Labor Contract during the Probationary Period] During the probationary period, the employer shall not terminate the labor contract unless the employee falls under 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.
Article 39 is a dismissal due to negligence, and Article 40 is dismissal without fault, of which the first item is that the worker is unable to perform the original job or work arranged by the employer after the expiration of the medical treatment period, and the second item is that the worker is incompetent for the job and is still incompetent for the job after training or job adjustment.
If we only look at Article 21, the Labor Contract Law provides better protection to probationary employees than regular employees.
Because there are two fewer statutory grounds for dismissal than regular employees.
The first is that the probationary period of the labor contract cannot be unilaterally terminated on the basis of Article 40, Paragraph 3, which states that "there is a major change in the objective circumstances on which the labor contract is concluded, which makes it impossible to perform the labor contract, and the employer and the employee fail to reach an agreement on changing the content of the labor contract after negotiation".
The second is that the labor contract of an employee during the probationary period cannot be terminated on the basis of Article 41 economic layoff.
What distinguishes it from a regular employee is the first item of negligent dismissal in Article 39: It is proved that the probationary employee does not meet the employment requirements.
This is a separate termination for probationary employees, and it is also a statutory reason for termination that many employers regard as a magic weapon for probationary period management.
In the previous case of a female executive illegally dismissing an employee, it was obvious that the employer could not prove that the employee did not meet the conditions for employment during the probationary period, otherwise it would have been enough to issue a dismissal notice without negotiation and payment of economic compensation.
In addition to not meeting the employment requirements, many employers like to use incompetence as an excuse for dismissing probationary employees.
This is in accordance with Article 40, Paragraph 2 of the Labor Contract Law. But everyone only saw the incompetence, and did not look at the subsequent incompetent dismissal process at all.
First of all, isn't it that you say that if you are incompetent, you are not competent? Does the company have any criteria and basis for determining incompetence? Have employees been informed of the criteria and basis?
Or how do you prove that the employee is incompetent? Just open your mouth?
Second, with the criteria and basis for determination, where is the evidence of incompetence? Is it objective?
Third, if the employee is to be terminated on the basis of incompetence, the employer can unilaterally terminate the employee's employment contract only after the training or transfer process has been carried out and the incompetence is proved to be incompetent.
Through the above interpretation, I believe you should have understood very well that it is not simple to terminate the labor contract of an employee during the probation period.
Statutory reasons, evidence, and processes are all indispensable.
For probationary employees, if you want to claim the maximum benefit, it is definitely not 2n.
Because 2n is just 1 times the salary.
In the case that it can be basically determined that the employer has illegally terminated the employee, the first arbitration claim of the probationary employee should be: to restore the labor relationship and pay the salary from the date of dismissal to the date of the award according to the monthly wage standard.
At the same time, it claims all rights and interests such as overtime pay during the probation period and unused annual leave pay.
If the labor arbitration finally determines that the employer has terminated the labor contract illegally, it will be ordered to resume the labor relationship and continue to perform the labor contract. At present, in some areas, it is possible to support the normal wage from the date of dismissal to the date of the award.
Article 25 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (II) (Draft for Comments) issued by the Supreme People's Court on December 12, 2023: [Wages during arbitration or litigation] Where the employer's decision to dissolve or terminate the labor contract is confirmed to be illegal and the labor contract can continue to be performed, and the employee requests the employer to pay the wages during the arbitration or litigation period after the above-mentioned decision is made, The employer shall pay the wages of the employee for the above-mentioned period according to the wage rate when the employee provided normal work. Where both parties are at fault, they shall each bear corresponding responsibility.
Although the judicial interpretation has not yet been officially released, it can basically be seen that the direction of the judicial judgment on the employee's claim for payment of normal wages for that period in the case of an employer illegally terminating and being sentenced to resume the employment relationship.
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