Answer: It may be illegal for the employer to do so.
Current judicial decisions show that although trial work has the nature of testing the ability of the recruited personnel, because the work is under the control of the employer, and the work content is an integral part of the employer’s business, or the trial work has the nature of probation period, the recruited personnel and the employer have established employment relationship during the trial period.1Guizhou Qianlangbang Real Estate Marketing Co., Ltd., Zhanglin Labor Dispute Second Instance Civil Judgment Guizhou Qiandongnan Miao and Dong Autonomous Prefecture Intermediate People’s Court Civil Judgment (2020) Qian 26 Min Zhong No.3425. ¡° Trial Period also belongs to the probation period. The probation period is included in the period of employment relationship.¡± The appeal case of labor dispute between Zhaoqing Mingcheng Holiday Hotel Management Co., Ltd. and Jiang Qicong, the civil judgment of Zhaoqing Intermediate People’s Court of Guangdong Province (2015) Zhao Zhong Fa Min Yi Zhong Zi No.33, Jieqiang Washing Department of Liuzhou City, Luo Zemin Labor Dispute Civil Judgment of Second Instance Liuzhou Intermediate People’s Court of Guangxi Zhuang Autonomous Region Civil Judgment (2019) Gui 02 Min Zhong No.2140.
Since the employer has established an employment relationship with the job applicant, it must pay him no less than the minimum wage for these two days of work. As for the employer’s refusal to sign an employment contract with the applicant after the two days, it can be regarded that the employer considers that the probation period shows the candidate not up to the hiring requirements, and that the employer terminates the employment relationship with him. If the employer can prove that the applicant does not meet the hiring requirements, the termination is legal.
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Mr. Dong Wang has been in practice for over 20 years, specializing in business law, including employment law, commercial law, company law, and intellectual property law. Mr. Wang has earned respect and trust from his clients due to his professionalism, fidielty, and kindness.
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- 1Guizhou Qianlangbang Real Estate Marketing Co., Ltd., Zhanglin Labor Dispute Second Instance Civil Judgment Guizhou Qiandongnan Miao and Dong Autonomous Prefecture Intermediate People’s Court Civil Judgment (2020) Qian 26 Min Zhong No.3425. ¡° Trial Period also belongs to the probation period. The probation period is included in the period of employment relationship.¡± The appeal case of labor dispute between Zhaoqing Mingcheng Holiday Hotel Management Co., Ltd. and Jiang Qicong, the civil judgment of Zhaoqing Intermediate People’s Court of Guangdong Province (2015) Zhao Zhong Fa Min Yi Zhong Zi No.33, Jieqiang Washing Department of Liuzhou City, Luo Zemin Labor Dispute Civil Judgment of Second Instance Liuzhou Intermediate People’s Court of Guangxi Zhuang Autonomous Region Civil Judgment (2019) Gui 02 Min Zhong No.2140.