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3 In relation to the Labour Contract Law of China:
(a) state the various circumstances under which a labour contract is NOT permitted to contain a probation clause;
(b) state THREE conditions under which an employer may dissolve a labour contract during the period of probation;
(c) state what an employer should do if it dissolves a labour contract during the period of probation.
答案:
3 This question requires candidates to state the rules with respect to the probation clause in the labour contract under the Labour Contract Law.
(a) In accordance with Paragraph 2 of Article 19 of the Labour Contract Law, no probation period is permitted in a labour contract with a term to expire upon completion of a certain job or a labour contract with a term less than three months.
(b) In accordance with Article 21, Article 39 and Article 40 (1) and (2) of the Labour Contract Law, an employer may dissolve a labour contract, during the probation period, if the employee meets any one of the following conditions:
(i) is proved not to satisfy the conditions for employment;
(ii) materially breaches the employer’s rules and regulations;
(iii) commits serious dereliction of duty, causing substantial loss to the employer;
(iv) be liable for his crimes pursued in accordance with the law. In doing so, the employer shall give adequate reasons for the dissolution of the labour contract under such circumstance.
(c) In accordance with Article 50 of the Labour Contract Law, the employer shall issue a proof of dissolution of a labour contract and, within 15 days, carry out the procedures for the transfer of the employee’s file and social insurance account.
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