Terminating an employee during probation in China

1. Check whether the probation term is valid

Article 19 links the maximum probation period to the employment-contract term: one month for a term of at least three months but less than one year; two months for at least one year but less than three years; and six months for a fixed term of three years or more or an open-ended contract. A contract shorter than three months, or one tied to completing a specific task, cannot include probation.

The same employer and employee may agree probation only once. Probation forms part of the employment-contract term; a document providing only for probation does not create a separate probation relationship. Check the actual signed dates and employment history before relying on a manager’s calendar or a proposed extension.

2. Identify the precise termination ground

Article 21 limits employer termination during probation to circumstances under Article 39 and Article 40(1) or (2), and requires the employer to explain the reason. Article 39(1) concerns an employee proved during probation not to meet the hiring conditions. This route should not be conflated with ordinary underperformance after probation.

A serious policy violation, inability to perform after the required steps, and failure to meet hiring conditions involve different factual and procedural questions. Select the ground supported by the actual record. Changing the legal label does not manufacture the missing evidence.

3. Compare the hiring conditions with contemporaneous evidence

Collect the conditions used when recruiting, how they were communicated, the job description, assessment method and the work produced during probation. Link each alleged shortfall to a defined requirement and a dated record. Job-related conditions are more informative than a retrospective statement that management has lost confidence.

An assessment created after the decision should not be presented as an earlier record. Preserve original communications and allow the lawyer to see unfavorable material as well as favorable material. If requirements changed during probation or the company did not provide the promised resources, those facts matter to the review.

4. Resolve timing, notice and procedural questions before delivery

Where the proposed ground is failure to meet hiring conditions during probation, check the probation end date and plan the assessment and communication while that period is still running. Do not assume that a notice sent after it ends can retrospectively use the same route. The notice should identify the actual ground and be consistent with the evidence reviewed.

Review Article 43 trade-union notification where applicable, delivery evidence and any protected circumstances relevant to the chosen ground. There is no universal rule that all probation dismissals require or avoid severance: the legal route and its lawfulness determine the consequences. A lawful Article 39 termination differs from an Article 40 termination or an unlawful dismissal.

5. What to send for an urgent review

Prepare the signed contract, first working day, agreed probation dates, hiring conditions, employee acknowledgment, assessment records, key correspondence and the proposed notice. State the decision deadline and whether any notice has already been delivered. These facts let counsel assess available routes without assuming the original plan can still be used.