The Employer Can Reasonably Agree To Extend The Probation Period.

In July 3, 2014, Xiao Chi entered the Q company in Shanghai, and the two sides signed a labor contract from July 3, 2014 to July 2, 2017. They agreed to serve as a front-end development engineer for the technical department. The probationary period was from July 3, 2014 to October 2nd in the same year. The basic wage and the basic salary during the probation period were 2800 yuan.

In September 10, 2014, Xiao Chi fell down at the door of the company and was diagnosed with right calcaneal fracture.

Because the company did not pay medical insurance in time, it had to pay its own expenses and began to use medical insurance in September 15, 2014.

In September 30, 2014, Q's human resources manager told the small pool by phone that the company could reimburse all the medical expenses of the pool, provided that the trial period was extended for three months.

After that, the company paid the sick leave of the small pool and sent an e-mail to it to extend the probation period until January 2, 2015.

After that, Xiao Chi signed a "change agreement" with the company, and agreed to extend the probation period from July 2, 2014 to January 2, 2015.

In November 20, 2014, Xiao Chi applied for arbitration, requiring Q company to pay the compensation for illegal trial period.

Xiao Chi believes that the nineteenth provision of the labor contract law stipulates that "a probation period can only be agreed between the same unit and the laborer". The law makes mandatory provisions on the number of probation periods. Even if the two sides agree to extend the probation period by consensus, it must also be carried out during the probation period. Therefore, the company's extension of the probation period agreement signed with the small pond is illegal.

However, the company believes that the extension of the probation period between the small pool and the company is a consensual manifestation of the two sides, and it has not exceeded the statutory time limit and is legal and effective.

Can the employer extend the probation period?

The labor contract law stipulates that: (1) a labor contract or a labor contract with a period of less than three months shall be stipulated in the labor contract law; the probation period shall not be more than one month; the probation period shall not exceed one month; if the term of labor contract is less than three years, the probation period shall not exceed two months; the probation period of three years or more fixed labor contracts with no fixed term shall not exceed six months; (2) the probation period is included in the term of the labor contract; the labor contract only stipulates the probation period; the probationary period is not established; the duration is the duration of the labor contract; (3) the same employer and the same worker can only agree to one probation period. (three)

From this, we can see that employers can not stipulate the length of probation without restriction.

Although the term of probation is a non essential clause of a labor contract, once it is written into the labor contract, it is binding on both sides of the contract, and both parties should strictly abide by it.

However, as mentioned above, the role of the probation period is the "running in" and "inspection" of the two sides. When certain situations occur, the workers and employers can not achieve the purpose of "running in" and "inspection", then the two sides should be allowed to negotiate on extending the probation period.

A common situation is that workers in the probationary period sick leave, maternity leave, marriage and funeral leave and other reasonable holidays, resulting in employers can not conduct a full inspection of workers.

Another uncommon situation is: when the employer is temporarily out of business during the probationary period, the employee is unable to clearly understand the employer and can not decide whether to continue to stay in the unit.

At this point, the two parties may change the probation period according to the spirit of the labor contract law according to the written consensus of both parties.

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In the extension of the probationary period, we should pay attention to several points.

1, extension shall not exceed the statutory time limit.

Because the law has the upper limit for the length of probation period, even if it is reasonably extended, the extended period can not exceed the upper limit prescribed by law.

For example, in the aforementioned cases mentioned above, laborers and employers have signed a 3 year contract, and the upper limit of time allowed by law is 6 months. On the basis of a 3 month probation period, employers can negotiate with workers for up to 3 months.

2, extension of conditions and procedures can be regulated by company rules and regulations.

The employer can standardize the employee manual through the democratic procedure.

For example, it clearly stipulates: "during the probationary period, if the employee fails to reach the standard due to incompetence, attendance rate or other reasonable reasons that the company considers it necessary to extend the probation period, the employer can reasonably extend the probation period, and the laborer agrees to the above change rules."

3. The extension of probation period should normally be carried out in the original probation period.

Finally, if the employer wants to change the length of probation period, it should also be operated before the end of the original probation period.

Because once the original probation period expires, the employer should evaluate the work performance of the laborers during the probation period.

The employer is not suitable to place the laborer through the conclusion of the probation period when the probation period expires.

In other words, whether the probation period is "pass through" or "fail to extend" can only be clarified before the end of the probation period.