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Does the probation period of more than six months count as "automatic regularization"?
Zhong Yongdi, a labor law expert and trainer, replied: 1. According to the Labor Contract Law, the longest probation period is 6 months. If the probation period exceeds 6 months, the excess part will be invalid, and the excess part will be regarded as "the term of the labor contract after becoming a regular employee" or "automatically becoming a regular employee". If the part of the illegal agreement has been fulfilled, the laborer may also claim compensation according to the provisions of Article 83 of the Labor Contract Law. Legal basis: Article 19 of the Labor Contract Law ... The probation period of labor contracts with a fixed term of more than three years and without a fixed term shall not exceed six months ... The probation period is included in the term of the labor contract. Article 83 If an employing unit violates the provisions of this Law by agreeing a probation period with an employee, the labor administrative department shall order it to make corrections; If the probation period agreed in violation of the law has been completed, the employing unit shall pay compensation to the employee based on the monthly salary of the employee after the expiration of the probation period and according to the time limit that has been fulfilled outside the statutory probation period. 2. According to the provisions of Article 21 of the Labor Contract Law, the probation period of a worker can be terminated only for the reasons of Items 1 and 2 of Article 39 and Article 40 of the Law; In practice, the employer should provide sufficient evidence to prove the objectivity and authenticity of the above reasons. According to relevant documents and judicial practice, the notice of dismissal must be issued before the expiration of the probation period and delivered to the workers before its establishment. If the notice of dismissal is issued after the probation period expires, it is likely to be considered as illegal termination. According to Article 46 of the Labor Contract Law, if an employer dismisses a probationary employee on the grounds of Article 39 of the Law, it is not required to pay economic compensation or compensation; If a worker is dismissed during the probation period on the grounds of items 1 and 2 of Article 40 of this Law, he shall pay economic compensation; Dismissal for other reasons is illegal and compensation (that is, twice the economic compensation) must be paid. Legal basis: Article 21 of the Labor Contract Law. During the probation period, the employing unit may not terminate the labor contract except in the circumstances specified in the first and second paragraphs of Article 39 and Article 40 of this Law. Article 39 The employing unit may terminate the labor contract if the employee is under any of the following circumstances: (1) The employee is proved to be unqualified for employment during the probation period; (two) a serious violation of the rules and regulations of the employer; (three) serious dereliction of duty, corruption, causing great damage to the employer; (4) The laborer establishes labor relations with other employers at the same time, which has a serious impact on the completion of the work tasks of the unit, or the employer refuses to correct it; (5) The labor contract is invalid due to the circumstances specified in Item 1 of Paragraph 1 of Article 26 of this Law; (6) Being investigated for criminal responsibility according to law. Article 40 In case of any of the following circumstances, the employer may terminate the labor contract after notifying the employee in writing 30 days in advance or paying the employee an extra month's salary: (1) The employee is sick or injured non-work-related, and cannot engage in the original job or other jobs arranged by the employer after the prescribed medical treatment period expires; (two) the laborer is not competent for the job, and he is still not competent for the job after training or adjusting his post; Article 46 Under any of the following circumstances, the employer shall pay economic compensation to the laborer: (3) The employer terminates the labor contract in accordance with the provisions of Article 40 of this Law; The enterprise may terminate the labor contract for workers who do not meet the employment conditions during the probation period; If the probation period is exceeded, the enterprise cannot terminate the labor contract on the grounds that it does not meet the employment conditions during the probation period.