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Concealing Work Experience to Meet Job Requirements
[2020-07-09]

  Court: Employee Violated the Obligation of Good Faith, Didn't Satisfy the Recruitment Requirements, and It's Justified to Terminate the Labor Contract

 

Probation is a process of mutual examination and understanding between the employer and the employee. Can the employer dismiss the employee directly if the employee is found to hide work experience during the probation period?

Recently, the Shanghai No.1 Intermediate People's Court (hereinafter referred to as the "Shanghai No.1 Intermediate Court") concluded a labor contract dispute arising from the dismissal of employee for hiding work experience. The court of second-instance found that the employer had fully proved the employee didn't meet the recruitment requirements during the probation period and could terminate the labor contract according to law. Therefore, it decided to dismiss the appeal and affirm the original judgment. 

 

[Case Review] 

On July 16, 2018, Yang Yu was recruited by HEAN as product manager of customer service department after headhunter recommendation and company interview. Two sides signed a three-year labor contract, stipulating that the probation period is 6 months and the basic salary is 13,000 yuan/month. On the first day to work, Yang Yu also signed HEAN's Job Description for Product Manager ("Job Description"), and acknowledged that he has read and understood the job duties and recruitment requirements.

On the 10th day, however, HR manager informed Yang Yu of terminating the labor contract.

HR manager asked, "Yang Yu, did you hide important information from the company? You told that you had 2 years of Internet experience at a friend's company, but it's inconsistent with your employment permit. You didn't work at Internet companies for up to three years and also hid another three short-term jobs."

"I didn't say my friend's company was an Internet company," Yang argued. "Yes, my work experience at Internet companies is less than three years, but you never told me this requirement for the job."

"Our company required five years of Internet work experience as specified in the recruitment requirements of product manager. Given that you're good in all other aspects and you said during the interview that you had 3 years of Internet work experience, we lowered this requirement and amended it in the Job Description, which you have signed for acknowledgement."

"But did that mean I have three years of Internet work experience? I didn't take a closer look at the lengthy Job Description."

"It's made clear in the labor contract that the company shall have the right to terminate the contract at any time if the employee violates the principle of good faith and hides from the company important information that should be disclosed."

Subsequently, HEAN sent an email to Yang Yu, informing that the company decided to terminate the labor contract on July 26, 2018 as Yang Yu was proved to be unqualified for employment during the probation period.

Dissatisfied with the company's decision, Yang Yu submitted an arbitration application to the Employment Dispute Arbitration Commission on August 1, 2018. Later, HEAN filed a lawsuit against the relevant arbitration award.

 

[Case Study]

After the trial, the court of first instance decided that HEAN doesn't need to resume the labor relations with Yang Yu as the employer shall have the right to terminate the labor contract if an employee is proved not to meet the recruitment requirements in the probation period. Refusing to accept the first-instance judgment, Yang Yu appealed to the Shanghai No.1 Intermediate Court, arguing that HEAN neither mentioned 3 or 5 years of Internet work experience during the interview nor raised any objection after he submitted the employment & unemployment registration certificate with records of his work experience.

After the trial, the Shanghai No.1 Intermediate Court held that, it's clearly stated in the signed Job Description that "at least 3 years of work experience at Internet companies is a must." Although Yang Yu said he had never been informed of the recruitment requirement, his WeChat records with the headhunter indicated that the headhunter had explicitly mentioned at least 5 years of Internet work experience when communicating to him and Yang Yu expressly replied he didn't meet the requirement. So, Yang Yu was clearly aware of HEAN's requirement on Internet work experience for this job.

In addition, Yang Yu declared that it's unjustified for HEAN to terminate the labor contract because HEAN knew or should know he didn't satisfy the recruitment requirement when signing the contract with him. After investigation, the Job Description and other pieces of evidence show that although HEAN adjusted the requirement on five-year experience when both sides were about to establish the labor relations, the company made it clear that Internet work experience is a must to Yang Yu's job. However, Yang Yu failed to provide valid evidence proving the non-existence of such requirement.

In view of the above, the Shanghai No.1 Intermediate Court dismissed the appeal and affirmed the original judgment.

According to the Labor Contract Law of the People's Republic of China, a labor contract shall be concluded based on the principle of good faith; the employer may terminate the labor contract if an employee is proved not to meet the recruitment requirements during the probation period. In this case, HEAN has made clear the recruitment requirement in job description, while Yang Yu's concealment of work experience to meet the recruitment requirement violated the obligation of good faith. Therefore, it's justified for HEAN to terminate the labor contract according to its rules and regulations.

Probation period is a period that the law grants to the employer and the employee for mutual understanding and mutual selection. The employer shall meet the following conditions if it terminates the labor contract on the grounds that an employee doesn't meet the recruitment requirement: (i) the employer has legal, specific and clear recruitment requirement; (ii) recruitment requirement is disclosed to the employee or announced publicly; (iii) there's evidence proving the employee doesn't meet the recruitment requirement; and (iv) exercise of the right of termination is within the prescribed probation period. If the labor contract is illegally terminated during the probation period, the employee can claim for restoration of the labor relations or payment of compensation.

 

(All names used are pseudonyms)

 

[Relevant Laws]

I. Labor Contract Law of the People's Republic of China

Article 39 The employing entity may have the labor contract revoked if a worker is found in any of the following circumstances:

(1) being proved unqualified for recruitment during the probation period;

...

II. Interpretation of the Supreme People's Court on Several Issues about the Application of Laws for the Trial of Labor Dispute Cases

Article 13 If a dispute of labor is caused by the employing entity's decision of kickout, removal from the name roll, dismissal, dissolution of contract, reducing remuneration, calculation of working years of the laborer, the employing entity shall be responsible for producing evidence.

 

(Author: Li Danyang, Shanghai No .1 Intermediate Court)

 

 

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