Asked by: HR from the manufacturing industry
Our Company signed a labor contract with an employee, and we agreed to a two-months-probation period. However, as the employee had surgery soon after the entry and ask for a month's sick leave, the Company can no longer use the probation period to fully assess the employee's professional ability. Consequently, the Company suggested an extension of the probation period, to which the employee agreed. Could you please tell me what's the risk involved in such an extension?
Johnny Xu-- Attorney from River Delta Law Firm (Shanghai):
In practice, whether the probation period can be extended remains controversial.
Article 15(2) of Regulations of Jiangsu Province on Labor Contracts stipulates: "when an employee suffers from an illness or needs treatment because of non-work injury during the probation, the probation shall be suspended during the prescribed medical period."
According to this regulation, if the employee in Jiangsu province suffers from an illness or needs treatment because of non-work injury during the probation, the probation may be suspended, and the probation period will continue after the employee recovers and is back to work. However, it should be noted that the suspension only applies to the case where the employee "suffers from an illness or needs treatment because of non-work injury";
According to the judicial precedents of Shanghai, it is considered that the Company and the employee can expressly agree on the reasonable circumstances of the extension of the probation in the labor contract. If there is an agreement, the probation can be extended in the event of a corresponding situation. However, many other provinces hold the view that probation cannot be extended. Once extended, it will be considered as an illegal agreement. The Company shall bear the consequences of violating law pursuant to the Labor Contract Law.
In addition, the Company should pay attention to the fact that even if the local judicial precedents support the extension of the probation under certain conditions, the total length of probation shall not exceed 6 months, and the corresponding term of the labor contract shall not violate the restrictive provisions of the Labor Contract Law.
To sum up, it is suggested that the Company reach consensus with the employee on the application of probation extension in the labor contract, and be compliant with the local provisions or the judicial precedents to avoid unnecessary risks.