[Direct answer]You can request compensation. During the probationary period, the employer cannot dismiss employees at will. The termination must comply with the circumstances stipulated in Articles 39 and 40 of the Labor Contract Law and the employer must provide a justification to the employee. If the termination is based on the employee's "failure to meet the recruitment requirements", the employer must provide evidence of the assessment basis. If the employer fails to provide evidence, the termination is considered illegal and the employee can claim double compensation or demand continued performance of the contract. For terminations due to non-fault dismissal, the employer must pay economic compensation. A dismissal on the last day of the probationary period does not affect the employee's rights. The employee can file an arbitration application within one year from the date of termination.

I. Problem Background and Typical Scenarios

Being dismissed during the probation period is a frequent dispute: some companies notify employees on the last day that they are "unsuitable and should leave", some verbally persuade them to quit by saying that they "failed the probation assessment", and some extend the probation period in disguise before terminating it. Many workers mistakenly believe that the employer can dismiss them at will during the probation period, but in fact, the termination of the probation period is also subject to statutory circumstances. Most disputes occur in positions with intensive assessments, such as sales and the Internet industry. Companies often fail to provide the previously announced recruitment conditions and assessment records. Terminating the contract on the last day is more likely to be regarded as an attempt to evade the obligation to confirm the probation period. The closer the probation period is to being confirmed, the more important it is to review the true reasons for the termination and the evidence base.

II. Key points of contention

  • Does it meet the employment conditions? The unit must prove that the employment conditions have been clearly stated in advance, the assessment process is authentic, and the conclusions are based on evidence. Simply having a supervisor's subjective evaluation or an assessment form completed retrospectively is not sufficient to exempt the unit from liability.
  • The timing and procedure of the dismissal: whether the decision to dismiss was made and delivered during the probationary period, whether the reasons were explained in accordance with Article 21, whether the trade union was notified, and the evidence presented at the critical moment often decides the outcome of the case.
  • Compensation guidelines: For terminations without any fault, economic compensation shall be paid; for illegal dismissals, the employee may choose to receive double compensation or demand continued performance of the contract; for illegal stipulations of excessively long probationary periods and the portions already fulfilled, additional compensation shall be calculated based on the wage standard applicable after the probationary period ends.

III. Professional analysis by Henglue Law Firm

Henglue Lawyers have observed in practice that employers often lose lawsuits due to three main reasons: failing to notify employees of hiring conditions in writing, arbitrarily formulating assessment standards, and failing to provide reasons for termination. Article 21 of the Labor Contract Law clearly stipulates that during the probationary period, except for the circumstances specified in Article 39 and Article 40 (1 and 2), employers may not terminate labor contracts; if termination occurs during the probationary period, employers must provide reasons to the employees. In other words, the "last day of the probationary period" is not a point of exemption from liability, but rather the most stringent review period. If the company cannot provide evidence, it constitutes an illegal termination, and the employee may claim double compensation. Only if the assessment is deemed unsatisfactory based on objective data and the system has been publicly announced and signed by the employee can it be deemed a legitimate termination. Additionally, if the probationary period salary is less than 80% of the agreed salary or lower than the local minimum wage, the difference can be claimed separately. The compensation for termination and unpaid wages should be calculated separately and claimed together.

IV. Practical suggestions and legal basis

Legal remedies: First, request the company to issue a termination notice stating the reasons in writing; then collect the recruitment announcements, confirmation letters of employment conditions, assessment records, work results, pay slips, and social insurance records; and finally apply for arbitration within one year. Legal basis: Article 19 of the Labor Contract Law (maximum duration of the probationary period), Article 20 (probationary wages not less than 80% of the agreed wages and not less than the minimum wage), Article 21 (restrictions on termination during the probationary period and obligation to provide reasons), Articles 39 and 40 (statutory termination circumstances), Articles 46 and 47 (economic compensation), Article 83 (compensation for violating the probationary period provisions), and Article 87 (double compensation for illegal termination). For enterprises wishing to standardize recruitment conditions and probationary assessment systems from the source, they may refer to the following guidelines:Intellectual property protection and corporate legal servicesFor disputes concerning agreements such as the training service period and non-compete clauses, you can seek adviceBusiness and contract dispute services for enterprisesAfter winning the lawsuit, if the unit refuses to comply with the judgment, you can apply for enforcement. For more details, please refer to the relevant provisions.Creditor-debtor relations and enforcement case services.

5. Henglu Law Firm's Reminder

Henglue Law Firm advises: If you are dismissed on the last day of your probationary period, the first step is not to sign a "resignation due to personal reasons" application, otherwise, your path to compensation will be basically blocked; the second step is to request a written notice of termination with a stated reason, and record the oral dismissal with audio or video; the third step is to make copies or take photos of the evaluation materials, work results, and attendance records. If the company proposes exchange conditions such as "active resignation in exchange for a recommendation letter", you must be vigilant and consult a professional before signing. There are no essential differences between the rights of probationary employees and those of regular employees. SeeLabor arbitration and work-related injury compensation servicesOrBeijing Henglue Law Firm.

Q1: Is it considered an illegal termination if an employee is dismissed on the last day of the probationary period?

It's not necessarily the case, but the review will be very strict. The key points are: whether the decision to terminate the employment contract is made and delivered before the probationary period ends; whether it falls under the statutory circumstances specified in Articles 39 and 40 of the Labor Contract Law; and whether the company provided a reasonable explanation in accordance with Article 21. If the company simply states "not suitable" in a general way and fails to present the pre-specified hiring conditions and evaluation evidence, arbitration tribunals and courts will typically rule that the termination is illegal and support double compensation or continued performance of the contract. The last few days of the probationary period are precisely the time when employers are most likely to evade their obligation to convert the contract to a permanent one. Workers should not be persuaded to quit by themselves just because they are still in the probationary period. They should promptly collect evidence and file for arbitration within one year to assert their rights.

Q2: Is there any financial compensation if you are dismissed during the probationary period?

It depends on the circumstances. If it is a non-fault dismissal or economic layoff under Articles 40 and 41, or if the unit proposes to terminate the contract by mutual consent under Article 36, the employer shall pay economic compensation, with one month's salary for each completed year and half a month's salary for less than six months; if it is terminated for reasons of serious disciplinary violations or other faults under Article 39, there will be no compensation; if the termination is deemed illegal, the employee may claim double compensation or demand continued performance of the contract. It is also necessary to check whether the probationary period agreement itself is legal: for a three-year contract, the maximum probationary period is six months. For the part exceeding the statutory limit and having been fulfilled, the employee may claim compensation according to the standard of one month's salary for the full probationary period under Article 83, and the two requests may be made concurrently.

Q3: Who should provide evidence if the candidate does not meet the employment requirements?

The burden of proof lies with the employer. The employer must prove three points: the hiring conditions were clearly communicated to the employee at the time of recruitment or onboarding (through job descriptions, confirmation letters of hiring conditions, and employee signing records, etc.); there was an objective assessment process and records; and the assessment conclusion reached the level of "unqualified", and the decision to terminate the contract was made within the probationary period with a clear explanation of the reasons. It's difficult to accept evidence such as a supervisor's statement "I just don't think he/she is a good fit" or an assessment form retroactively created after the fact. On the other hand, the employee can submit work results, attendance data, and past performance evaluations to prove that they performed their duties normally. If the employer fails to provide sufficient evidence, the termination will be deemed illegal, and the employer will be required to pay double compensation or continue to perform the labor contract.

Q4: What should I do if the probationary period salary is less than 80% of the agreed salary?

According to Article 20 of the Labor Contract Law, the probationary period salary shall not be lower than the minimum salary of the same position in the unit or 80% of the salary agreed upon in the labor contract, and shall not be lower than the minimum wage standard of the employing unit's location. If it is lower than this, the employee may claim to make up the difference and may file a complaint with the labor administrative department in accordance with Article 85, and the employing unit shall be ordered to pay the salary within a specified period. Note that this standard applies to the "agreed salary". If the unit lowers the probationary period base salary by means of performance-based incentives, the relevant arrangements shall be deemed invalid if they are lower than the aforementioned base salary. When the employee is unlawfully dismissed, the base salary for calculating the compensation shall also be based on the compliant salary. The employee may claim both the compensation and the difference in salary in the arbitration process.

Q5: What evidence do I need to prepare if I want to apply for arbitration after being dismissed during the probationary period?

It is recommended to prepare five categories of evidence: 1. Evidence of labor relations, such as labor contracts, employee badges, attendance records, social insurance records, and salary payment records; 2. Evidence of hiring conditions and performance evaluations, such as recruitment announcements, employment offers, confirmation letters of hiring conditions, evaluation forms, and work results; 3. Evidence of termination, such as termination notices, recorded conversations, WeChat messages, and work handover documents; 4. Evidence of wage standards, which are used to calculate the base amount for compensation or damages; 5. Evidence of overtime and annual leave records, which should be claimed together if eligible. The arbitration application should clearly state the amount of the claim and the factual grounds, and attention should be paid to submitting the application within one year from the date of termination. After obtaining the evidence, it is advisable to consult a lawyer to evaluate the claim strategy and avoid omissions or misinterpretations.

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