Employee Probation in China
- How long can the employee probation period be agreed upon in China?
The maximum term of probation is dependent on the term of the employment contract, namely:
(1)
|
If the term of employment contract is 3 months or more but less than 1 year, the probation period can be maximum 1 month.
|
(2)
|
If the term of employment contract is 1 year or more but less than 3 years, the probation can be maximum 2 months.
|
(3)
|
If the term of employment contract is 3 year or more or the employment contract has no fixed term, the probation can be maximum 6 months.
|
(4)
|
For employment contract which expires upon completion of agreed assignments or employment contract with a term of less than 3 months, no probationary period shall be agreed upon.
|
- Can the probation period be renewed?
An employee may be subject to only one probation period with the same employer in accordance with the Employment Contract Law of the PRC. The probation period cannot be renewed upon expiration. The employer is also not allowed to set a new probation period upon renewal of the employment contract.
- Could the employer terminate the employment contract at will during probation period?
Terminating a probationary employee in China requires a legally permissible ground under the law. According to the Employment Contract Law of the PRC, an employer can terminate an employee on probation only for one of the following eight grounds:
(1)
|
The employee failed to satisfy the conditions of employment during the probation period;
|
(2)
|
The employee materially breached labour disciplines or the employer’s rules and regulations;
|
(3)
|
The employee committed a serious dereliction of duty or engaged in graft that caused substantial damage to the employer;
|
(4)
|
The employee established an employment relationship with another employer which materially affected the completion of the employee’s tasks with the employer or the employee refused to terminate his or her employment relationship with the other employer after the employer required he or she do so;
|
(5)
|
The employee used deception or coercion or took advantage of the employer’s difficulties to cause the employer to conclude or amend the contract in a way contrary to the employer’s true intent;
|
(6)
|
The employee had criminal liability imposed in accordance with the law;
|
(7)
|
The employee fell ill or sustained a non-work related injury and at the end of his or her medical treatment period could not engage in the original work or in other work arranged by the employer; or
|
(8)
|
The employee was incompetent and remained incompetent after training or assignment to another post.
|
Note: Statutory severance is required for the last two grounds.
The employer is required to provide convincing documentation or evidence for the above termination ground. Otherwise, the employer may encounter the legal risk of unlawful termination of employment contract.
- Is the employer required to contribute social insurance and housing fund for the employee on probation?
The probation period is deemed to be part of the employment term. Therefore, the employer’s obligation to contribute statutory social insurance and housing fund commences as soon as the employee begins working for the employer.
KAIZEN Group is equipped with experienced and highly qualified professional consultants and is therefore well positioned to provide professional advices and services in respect of the formation and registration of company, application for various business licences and permits, company compliance, tax planning, audit and accounting in China. Please call and talk to our professional consultants for details.
|
