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【Case】The Employer should Bear the Adverse Consequences if the Probation is not Clear
2014-November-14 Source: Newsgd.com
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It is reported that, on October 1, 2013, Mr. Wang was employed by Company A. Both parties only signed a probationary contract in which the probation is provided to begin from October 1, 2013, the salary is RMB3000 monthly in the probation, but probation period is not explicit. Since that, Company A did not sign the labor contract with Mr. Wang. On March 20, 2014, Mr. Wang sued to the court for requiring Company A to pay the difference of the double wages due to failing to sign the labor contract with him.

Wang argued that a written probationary contract did not specify the time limit, but the actual period for probation is two months. His probation has been concluded on December 1, 2013. Company A did not agree with Wang and defended the probation contract is the labor contract in the nature and the longest probation period may be 6 months. So Wang was still in the probation. But Company A could not submit the evidence to prove its claim.

After hearing, the court held that, if the probation period is not clear in the contract, Company A should bear the burden of proof about the period of probation as the management party in the labor process. Because Company A failed to submit the relevant evidence, it should bear the adverse consequences. So the court accepted Mr. Wang’s claim about probation period for two months. Company A only signed a probationary contract. The probation period shall be the term of the labor contract. It shall be regarded to sign a two-month labor contract beginning from October 1, 2013. From December 1, 2013 to March 20, 2014, because Company A failed to sign the labor contract with Wang, it shall pay the difference of the two times wages to Wand. Finally, the court decision supports the claims of wang.

(This information is provided by Lawyer Kelly Xie from Guangdong KaiTong Law Firm in friendship. It is not any legal opinion or legal grounds addressed to any organization or individual. For inquiry, please contact Kelly via email at Kelly_xie@ktlf.com.cn or by phone on 13926185641.)

Editor: Sunny
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