[Direct answer]In the Beijing area, the defense of enterprises should focus on three key points: "clear hiring conditions, objective assessment, and legal procedures". According to Article 21 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012), during the probationary period, except for the circumstances specified in Article 39 and Article 40 (1) and (2) of the Law, the employer shall not terminate the labor contract; if the employer terminates the labor contract during the probationary period, it shall explain the reasons to the employee. Article 39 stipulates the circumstances under which the employee can be dismissed during the probationary period, such as being proven to not meet the hiring conditions. Therefore, the key points of the enterprise's defense are: whether the hiring conditions are clearly specified and communicated in advance; whether there are objective assessment bases for meeting the hiring conditions; whether the decision to dismiss is made within the probationary period and the reasons are explained; and whether the relevant systems are legally announced. Dismissals lacking evidence are easily deemed illegal, and the employer needs to pay compensation at twice the standard of economic compensation or continue to perform the labor contract.

I. Problem Background and Typical Scenarios

Dismissal during the probationary period leading to labor arbitration is one of the most frequent disputes in enterprises. Typical situations include: failing to specify the recruitment conditions during the recruitment process and then arbitrarily citing them as grounds for dismissal during the dismissal process; using subjective evaluations or summary assessments as the basis for determining that the employee does not meet the recruitment conditions; making the decision to terminate the employment contract after the probationary period has expired; failing to fulfill the obligation to provide reasons and serve the notice in accordance with legal procedures; failing to publicize the rules and regulations or obtain the employee's signature for acknowledgement; and dismissing employees due to internal reasons such as organizational adjustments or rectifications. In arbitration and judicial practice in Beijing, enterprises bear the burden of proof for the statutory grounds and procedures for terminating the employment contract. If the evidence is insufficient, the dismissal may be deemed illegal.

II. Key points of dispute

First, are the hiring conditions clear and were they communicated to the worker in advance? Second, are the assessment standards and processes supported by objective records? Third, was the termination made and implemented during the probationary period, with a justification provided and a notification procedure followed? Fourth, are the rules and regulations legal, publicly announced, and acknowledged by the worker? Fifth, does the dismissal on the grounds of internal rectification or organizational adjustment constitute a legally permitted termination? Sixth, what are the legal consequences and compensation calculations for unlawful terminations?

III. Professional analysis by Henglue Lawyers

In a labor dispute handled by Henglue Law Firm, a limited company issued "Notices of Termination of Labor Relationship" to multiple employees on the grounds that recruitment procedures were found to be irregular during inspections and audits, unilaterally terminating the labor contracts. These employees had been providing labor, accepting management, and receiving salaries during their employment, and some had even renewed their labor contracts with the company. The employees jointly applied for arbitration, and the case went through first-instance and second-instance trials, all of which were represented by the lawyer throughout. The lawyer's core arguments included: First, the labor relationship is established from the date of employment, and the written labor contract becomes effective upon signature and stamping by both parties. The filing with the human resources and social security authorities is merely an administrative matter, not a prerequisite for the contract's effectiveness. The company's claim that the contract is invalid due to non-filing lacks legal basis. Second, the principle of consensus applies to contract renewal. Internal or superior-level approvals are part of the company's management processes and cannot infringe upon employees' legitimate rights. Third, by comparing Article 39 of the Labor Contract Law of the People's Republic of China and Article 19 of the Implementing Regulations of the Labor Contract Law of the People's Republic of China, it is clear that rectification during inspections and audits and irregular recruitment procedures do not constitute statutory grounds for unilateral termination. Fourth, according to Article 48 of the Labor Contract Law of the People's Republic of China, if the employee requests continued performance and the labor contract can still be performed, the employer must continue to fulfill its obligations. The arbitration, first-instance, and second-instance courts all adopted the lawyer's arguments, ruling that the terminations were illegal, revoking the termination decisions, and ordering the continuation of the labor contracts. This case directly reminds enterprises that terminating labor contracts must meet statutory conditions and factual basis. It is difficult to justify dismissals based solely on internal management flaws, rectification requirements, or non-filing. The same applies to dismissals during the probationary period. Enterprises must clarify hiring conditions in advance, keep assessment records, and provide legal justifications, otherwise they may be deemed to have unlawfully terminated the contracts. This case was handled by Beijing Henglue Law Firm.Feng NaThe attorney (practice license number: 11101202211562923, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action list: Firstly, clarify and inform the recruitment conditions and assessment standards in writing during the recruitment and onboarding stages; Secondly, conduct standardized assessments during the probation period, and prepare written records that must be signed by employees; Thirdly, make decisions on termination during the probation period and provide written reasons and legal notifications; Fourthly, improve the procedures for formulating and publicizing rules and regulations, and obtain employee signatures to confirm their acceptance; Fifthly, avoid unilaterally dismissing employees on the grounds of internal rectification, organizational adjustments, or procedural flaws; Sixthly, respond promptly to arbitration applications and prepare comprehensive evidence of employment and assessment. For cases involving labor arbitration and work-related injury compensation, refer to the relevant guidelines for reference.Labor arbitration and work-related injury compensation; For reference, you can check the content related to enterprise contract and compliance managementBusiness and contract disputes in enterprises; For reference, you can refer to the aspects related to the corporate law and system construction of the enterpriseIntellectual property protection and corporate lawLegal basis: Articles 21, 39, 48, and 87 of the Labor Contract Law of the People's Republic of China (amended on December 28, 2012), and Article 19 of the Implementing Regulations of the Labor Contract Law of the People's Republic of China (promulgated and implemented on September 18, 2008). The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

Firstly, the prerequisite for terminating the probationary period are that the employment conditions must be clear and verifiable, and the reasons put forward on the spot are difficult to be accepted. Secondly, the decision to terminate the probationary period must be made within the probationary period and the reasons must be stated. It is risky to terminate the probationary period after the deadline. Thirdly, if the rules and regulations are not publicized or not signed, they cannot be used as the basis for punishment. Fourthly, dismissing employees on the grounds of internal rectification or procedural defects does not belong to the statutory circumstances for terminating the probationary period, and it is easy to be regarded as illegal. Fifthly, the evidence for terminating the probationary period should be formed in the daily management, rather than being made up after the dispute arises. If it involves labor arbitration, it can be handled through the arbitration process.Labor arbitration and work-related injury compensationYou will receive a comprehensive solution for the service, which can be integrated with corporate compliance.Business and contract disputes in enterprisesFor those involving system construction, you can combine them together.Intellectual property protection and corporate lawComprehensive judgment.

VI. Frequently Asked Questions

Q1: How to defend against an arbitration case if an employee is dismissed during the probationary period?

There are three defenses: First, the hiring conditions. Provide evidence that the hiring conditions and assessment standards were clearly defined and communicated during the recruitment and onboarding stages; Second, the assessment basis. Submit written assessment records during the probationary period, the completion of work tasks, and materials signed by the employee to prove that they do not meet the hiring conditions; Third, the legality of the procedure. Prove that the decision to terminate was made during the probationary period, provide a written explanation, and deliver it in accordance with the law. In addition, it is necessary to verify whether the rules and regulations are legally publicized. If the company lacks sufficient evidence in the above-mentioned steps, it may still be deemed to have terminated the contract illegally and be required to pay compensation or continue to perform the labor contract.

Q2: Can I dismiss an employee during the probationary period without any reason?

No. According to Article 21 of the Labor Contract Law of the People's Republic of China, during the probationary period, except for the circumstances specified in Article 39 and Article 40 (1) and (2) of the Law, the employer shall not terminate the labor contract; if the employer terminates the labor contract during the probationary period, it shall explain the reasons to the employee. Article 39 includes circumstances such as being proven unqualified for employment during the probationary period. Therefore, terminating the contract during the probationary period also requires statutory circumstances and factual basis. Enterprises cannot dismiss employees solely based on subjective evaluations.

Q3: How can I prove that I don't meet the hiring requirements?

The key lies in the clear definition of hiring criteria and the documentation of the assessment process in advance. Enterprises should specify the job responsibilities and hiring criteria in recruitment announcements, employment notifications, or labor contracts, and have employees sign and confirm them upon employment; during the probationary period, assessments should be conducted according to established standards, resulting in written assessment forms, records of work achievements, and communication materials, preferably signed by employees. If the reasons for dismissal are based solely on vague performance evaluations, or if the assessments are conducted after the dismissal, it is usually difficult to gain credibility. Evidence should be generated simultaneously in daily management to avoid making corrections after disputes arise.

Q4: How much compensation do I have to pay if I dismiss an employee during the probation period?

It depends on whether the termination is legal. If the employer can prove that the worker failed to meet the employment conditions during the probationary period, and the termination is lawful and the employer fulfills the obligation to provide a reason, it is usually not necessary to pay compensation; if the termination lacks statutory circumstances or the procedure is illegal, it may be deemed an illegal termination. If the worker requests to continue the employment and the labor contract can be continued, the employer shall continue to perform the contract; if the worker does not request to continue the employment or the contract cannot be continued, the employer shall pay compensation at twice the standard of economic compensation. The compensation is calculated based on the worker's length of service and salary level in the unit.

Q5: How can companies reduce the employment risks during the probationary period?

It is recommended to proceed from four aspects: First, clear conditions. During the recruitment and onboarding stages, the hiring conditions and assessment standards should be specified in writing; Second, keep records of the process. During the probationary period, assess employees according to the standards and form written records signed by the employees; Third, standardize procedures. Make decisions on termination during the probationary period, provide written reasons and deliver the decisions according to the law; Fourth, comply with regulations. Improve the formulation and publicity procedures of rules and regulations. In addition, the probationary period and salary standards should comply with legal provisions. For adjustments or dismissals involving multiple employees, it is advisable to conduct legal assessments in advance to avoid unilaterally terminating the employment contracts on the grounds of internal management flaws.

This article is written based on the common judicial interpretation in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, so as to avoid missing the statutory time limit.Labor arbitration legal services·Attorney Feng Na·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.