APAC: PROBATIONARY PERIODS
Last month, we highlighted the legal obligations on employers considering including a probationary period in contracts of employment in Hong Kong, Thailand and Indonesia. This month, we focus on the position in South Korea, China and Japan.
SOUTH KOREA CHINA
CAN AN EMPLOYER INTRODUCE A PROBATION PERIOD IN CONTRACTS OF EMPLOYMENT?
IS THERE A MAXIMUM PROBATION PERIOD PERMISSIBLE BY LAW?
IS AN EMPLOYER ABLE TO UNILATERALLY EXTEND AN EMPLOYEE'S PROBATION PERIOD?
Yes.
No. but the general principle is that a probationary period will only be effective for a period that is reasonable, and the courts have found that, in general, a period of up to six months may be reasonable.
No. An employer may only extend a probation period where:
the employment agreement expressly provides for extension of the probation period at the employer's discretion; or
the employer obtains the employee's consent to vary that term of the agreement.
Yes, but no probationary period may be set for an employment contract with a term of less than three months, a project based employment contract, or a part time employment contract.
Yes, depending on the term of the employment contract.
The maximum probationary period is:
one month for an employment contract with a term of three months or more but less than one year;
two months for an employment contract with a term of one year or more but less than three years; and
six months for an employment contract with a term of three years or more, or for an indefinite term employment contract.
No. An employer may only extend a probation period where:
the extended period is still within the statutory time limit; and
the employer obtains the employee's consent to vary that term of the agreement before expiration of the original probationary period.
JAPAN
CAN AN EMPLOYER INTRODUCE A PROBATION PERIOD IN CONTRACTS OF EMPLOYMENT?
IS THERE A MAXIMUM PROBATION PERIOD PERMISSIBLE BY LAW?
IS AN EMPLOYER ABLE TO UNILATERALLY EXTEND AN EMPLOYEE'S PROBATION PERIOD?
Yes.
No, but the general principle is that a probationary period will only be effective for a period that is reasonable, and the courts have found that, in general, a period of up to six months may be reasonable.
No. An employer may only extend a probation period where:
the employment agreement expressly provides for extension of the probation period at the employer's discretion; or
the employer obtains the employee's consent to vary that term of the agreement.
If you would like further information on this topic, please contact Fatim Jumabhoy at fatim.jumabhoy@hsf.com.
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