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)