Click on the blue word and follow us
The probationary period is the inspection period during which the employer and the employee agree on a certain period of time in order to understand and choose each other after establishing the labor relationship. Therefore, during the probationary period, the right of employees and employers to terminate the labor contract is relatively free.
Employers can examine all aspects of the worker to determine whether they are suitable for the job.
In the case of determining that the employee is not suitable for the job, the employer may propose dismissal to the employee, which is the right granted to the employer by law. However, this does not mean that the employer can arbitrarily use reasons to prevaricate and dismiss the employee.
He Dong joined Panyu Foreign Chinese School on August 19, 2018 as a junior high school teacher and officer of the Moral Education Office. The parties entered into an employment contract with a term of August 19, 2018 to August 18, 2021, and an agreed probationary period from August 19, 2018 to February 18, 2019.
On January 29, 2019, Panyu Foreign Chinese School issued a Notice of Termination of Labor Contract. The main content is that Panyu Foreign Chinese school to complete the assessment of a number of assessment indicators such as teacher mutual evaluation, student feedback, and parent rating. He Dong's assessment results during the probationary period were unqualified.
Panyu Foreign Chinese School believes that He Dong has corporal punishment of students, infringement of students' legitimate rights and interests, lack of teaching management experience leads to classroom order chaos, there are professional ethics problems such as beating and cursing students; many serious violations of the relevant rules and regulations of the school, do not abide by school discipline, busy handling many legal disputes can not be at ease into education and teaching work, etc.; during his tenure, he opened an education and training institution and established a de facto labor relationship with other units; the curriculum did not meet the standards, the teaching performance was seriously substandard, and he could not be competent in education and teaching work. Circumstances such as individuals failing to pass the final assessment.
He Dong was not satisfied with the contents of the Notice of Termination of Labor Contract and filed a civil lawsuit after the arbitration failed.
In the lawsuit, Panyu Foreign Chinese School submitted the results of the teacher assessment of the middle school department in the first semester of the 2018-2019 school year, the teaching inspection record form, the certificate and the situation statement.
Focus on controversy
The focus and premise of the dispute in this case is the legality of the termination of the labor contract by the Panyu Foreign Chinese School during the probationary period.
Answer according to the law
Article 39 of the Labor Contract Law stipulates that an employer may terminate a labor contract if an employee has any of the following circumstances: (1) it is proved that he does not meet the employment requirements during the probationary period; (2) he seriously violates the rules and regulations of the employer; (3) he seriously derelicts his duties, engages in fraud for personal gain, and causes major damage to the employer; (4) the employee establishes an employment relationship 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 the employer proposes it ;(5) Where a labor contract is invalid due to the circumstances provided for in item 1 of the first paragraph of Article 26 of this Law; (6) where criminal responsibility is pursued in accordance with law.
In this case, Panyu Foreign Chinese School as a school unit, different from ordinary enterprises, as a teaching profession is sacred and great, not only requires practitioners to have relevant professional knowledge, but more importantly, practitioners need to have good teacher moral conduct. He Dong joined Panyu Foreign Chinese School on August 19, 2018 as a junior high school teacher and officer of the Moral Education Office, but in the first semester, He Dong was evaluated by students and relevant departments organized by Panyu Foreign Chinese School, and He Dong's assessment results were unqualified, and He Dong could not provide contrary evidence for the evidence provided by the foreign Chinese school. Therefore, the termination of the labor contract Chinese between the two parties on the grounds that He Dong did not meet the employment conditions did not violate the law.
Summary presentation
Different positions have different responsibilities and employment conditions, if during the probationary period, the unit can prove that the employee does not meet its employment conditions, that is, there is a legal and favorable evidence to provide, the labor contract with the employee can be terminated.
If the employer terminates the labor contract only on the grounds that it does not meet the employment conditions, and does not provide relevant evidence to prove it, it may be regarded as an illegal termination of the labor contract and will face the risk of paying economic compensation.