Due to the suspension of the epidemic, the company can suspend the trial period of the employee

■ Xie Bingcheng

Li joined a company as the deputy leader of a company on October 17, 2019. The two parties signed a three -year term labor contract and agreed to the probation period of 6 months.

From January 18th to 30th, 2020, the company's Spring Festival holiday. During the Spring Festival holiday, the new coronary pneumonia epidemic broke out. The company continued to stop work on the vacation on the prevention and control of government epidemic, and resumed work on March 15. The company believes that the suspension of the epidemic has led Li's trial period to be suspended, and it should be postponed for 1.5 months. On April 30, the company lifted the labor contract with Li on the grounds of failure to qualify for the probation period.

Li believes that the company's illegal termination of labor contracts, then applied for labor arbitration, advocating restoration of labor relations, and supported. The company complained to the court, and the courts of the two trials believed that the trial period of extended Li was legal and made a judgment that supported the company.

Comment

The focus of the controversy in this case is that due to the prevention and control of the epidemic, is it legal to make a trial suspension of the trial period?

There are two views in practice. One view is illegal, the trial period is legal, and the labor contract is uniformly changed by negotiation between the two parties. The enterprise cannot unilaterally suspend or extend it. Whether there is a suspension of work during the trial period. Another point of view is that it is legal that due to the prevention and control of the epidemic, the employee has not provided labor objectively. The purpose of the trial purpose of the enterprise cannot be achieved, and the employee's trial period should be performed unilaterally.

I agree with the second point of view.

First, the test period is suspended from the legal basis. The so -called trial period is suspended refers to the suspension of the trial period of employees during the labor period without providing labor, and then restore the calculation when the labor is provided normally. Wait.

Laws and regulations at the national level have not stipulated the suspension of the probation period. From this perspective, there is no legal basis for enterprises to suspend employees' trial period. However, there are some places that stipulate the suspension system of the probation period, such as Article 15 of the Labor Contract Regulations of the Jiangsu Province stipulated that "if the workers are ill during the probation period or they must be suspended due to work injuries, they must be treated with work injuries. During the period, the probation period is suspended. "Article 13 of the" Implementation of the Implementation of the Labor Contract Law "of the" Labor Contract Law "stipulates that" ... if the worker is ill during the probation period or is not injured due to labor, the partner of the labor relationship will be affiliated with labor. The negotiation is consistent, and the probation period can be suspended. "

Secondly, the trial period is suspended from the legislation of the trial period. The reason why the legislators set the probation period is to allow the labor relationship to inspect each other within a certain period of time, and finally make a choice. It is not only to ensure the realization of employees' employment options, but also the exercise of the autonomy of the employment of enterprises. As far as the enterprise is concerned, the employees of the trial period should be inspected, provided that the actual trial is necessary. Employees must truly provide labor. In the trial process, the enterprise will observe Understand, finally make a decision whether to formally recruit. If employees do not provide normal labor during the trial period, they will not be achieved by the company's trial purpose. For example, the provisions of Jiangsu and Tianjin have their rationality.

Thirdly, the system should be prevented from abuse the trial period and infringe on the legitimate rights and interests of employees. Although the author agrees with the suspension of the trial period, it should strictly restrict the use of the system to prevent their abuse. First, the premise of non -enterprise reasons, such as the prevention and control of the epidemic, and the hospitalization of employees' illness and hospitalization. If employees cannot provide labor normally due to corporate reasons, such as enterprises are ordered by government departments for violations of production safety laws and regulations. The trial period of employees cannot be stopped; the second is that the employee does not provide a certain length during the labor period. For example, if the employee gets married for three days during the trial period, the trial period cannot be suspended; Employees suspend their trial period and shall not be informed after the expiration of the trial period.

In the case, the company was in force due to the prevention and control of the epidemic, and objectively could not achieve a trial inspection of Li. The company decided to suspend its trial period, and the court should judge that it was legal.

Special Note

In the practice of corporate labor relations, the suspension of the probation period is still risky operation. The author recommends that the majority of enterprises should try to agree on a long probation period. Even if there are no labor in the middle, it does not provide labor and does not affect the inspection of employees; If the labor fails to provide a few days, the enterprise can suspend its trial period; the third is to try to reach an agreement with the employees as much as possible, and sign another supplementary agreement. Only in this way can we reduce the risk of employment and ensure the healthy and stable development of enterprises.

(Author is a senior human resource manager)

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