Can an employer fire fresh graduates in this way?

Can an employer dismiss fresh college students in this way?

Wang is a 2007 graduate of a key university in Shanghai, with a bachelor's degree in information technology application, a bachelor's degree in engineering, and a second subject He holds a bachelor's degree in English, passed the National CET-6 exam in English, and obtained the qualification certificate for senior English interpreter positions in the Shanghai Urgent Talent Training Project. In October 2007, he served as an interpreter for the American side in the preparation and opening ceremony of the Special Olympics World Summer Games. On December 15, 2007, Shanghai XX Information Technology Co., Ltd. conducted recruitment through the joint job fair of five schools in southwest Shanghai, prestigious schools and enterprises, and determined the recruitment conditions. After interviews and written examinations, Wang was hired. An offer letter was issued to him, clarifying that the specific position was a translator, with an annual income of no less than RMB 60,000, and the registration date was December 24, 2007. On the day of registration, the company and Wang signed a tripartite employment agreement witnessed by the school, clarifying that his annual income was 60,000 yuan per year, and signed a three-year labor contract with a probation period of four months. On February 2, 2012, the company issued a "Notice of Dismissal of Employee", stating that Wang was not competent for the job during the probation period, and the overall response to him within the department and the project team was poor, and he lacked teamwork spirit. The company believed that Wang did not meet the employment conditions and decided to terminate the labor relationship immediately? Wang believed that the company had illegally terminated the contract, and entrusted a lawyer to file an arbitration with the Labor Dispute Arbitration Committee, requesting the company to revoke the decision to terminate the labor relationship, restore the labor relationship, and pay labor remuneration during the period of restoration of the labor relationship. Recently, the case has been concluded, and the arbitration committee supported all Wang’s requests.

Lawyer Li Huaping commented: This is a typical dispute over the termination of the labor contract between an employer and a fresh university graduate. This dispute involves several legal relationships such as employment conditions, probation period assessment, probation period termination, etc. It is hoped that the analysis of this case will be helpful to employers in regulating the employment behavior of fresh college graduates.

1. Recruitment conditions cannot replace employment conditions, and the employer shall not terminate the labor contract on the grounds that the recruitment conditions are not met.

Recruitment conditions are the basic qualification requirements for employers to select workers when recruiting. They are set for unspecific applicants. They are an invitation to offer and are only the basis for inspecting and screening applicants during the recruitment period. The employment conditions are the final conditions for the employer to determine the worker to be hired. They are an offer. Once agreed with the worker, they will become the basis for assessment during the probation period. According to Article 39 of the Labor Contract Law, if an employee is proven not to meet the employment conditions during the probation period, the employer may terminate the labor contract. In this case, the company only provided recruitment conditions and did not provide evidence of employment conditions. If there are no employment conditions, there is no such thing as not meeting the employment conditions. Therefore, the company cannot terminate the labor contract with Wang by replacing the employment conditions with recruitment conditions.

2. The dismissal notice for terminating the labor contract of an employee during the probationary period on the grounds of inability to perform the job has no basis in law.

The probation period is a period for the employer and the employee to get to know each other and examine each other. Wang is within the probation period, and the employer should assess whether Wang meets the conditions based on the employment conditions, rather than determining whether he is qualified for the job. The company's "Notice of Dismissal of Employee" stated that the company terminated the labor contract on the grounds of incompetence during the probation period, which was inconsistent with the provisions of Article 40 of the "Labor Contract Law" and had no legal basis. Even for employees who have expired on probation, if the employer wants to terminate the labor contract on the grounds that they are incompetent for the job, they still need to prove that they are still incompetent after being transferred or trained, and must provide advance notice or pay additional fees. obligation.

3. Employers must provide necessary on-the-job training to fresh graduates to help them adapt to work requirements.

Wang, a recent graduate from the department, can be said to be a graduate with excellent academic performance, judging from his learning experience and practice of obtaining a double degree while at school and serving as a volunteer for the World Summer Special Olympics. When graduates enter the society and enter the workplace, role transformation requires a long adaptation period.

Therefore, the company should provide necessary training before taking up the job, and provide education on teamwork, responsibility, psychological quality, etc., especially during the probation period, from the perspective of caring for and caring for the growth of young talents, and providing more care and guidance at work. , help them adapt to the work environment and work requirements as early as possible and go through the role transition period. In this case, Wang was fired by the company after one month of working. Obviously, the company did not fulfill its obligation to help and guide. Therefore, the overall response to him within the company's department and the project team was poor, and the claim that he lacked teamwork spirit is difficult to accept. supported by the arbitration committee.

4. If the employer illegally terminates the labor contract, the employee may request to restore the labor relationship or claim compensation.

Article 48 of the "Labor Contract Law" stipulates that if the employer violates the provisions of this law to terminate or terminate the labor contract, and the employee requests to continue to perform the labor contract, the employer shall continue to perform; if the employee does not request If the labor contract continues to be performed or the labor contract can no longer be performed, the employer shall pay compensation in accordance with Article 87 of this Law. If the company illegally terminates the labor contract with Wang, Wang can choose to request restoration of the labor relationship or claim for compensation. Therefore, Wang’s arbitration request to restore labor relations and require the company to pay wages during the period of restoration of labor relations was supported by the Labor Dispute Arbitration Committee. ;