Dismissed for failing probation. Reasons for possible dismissal during the trial period

You will need

• - labor contract;
• - notice of dismissal;
• - written evidence;
• - an act of refusal;
• - notice of dismissal;
• - employment history employee;
• - personal card of the employee.

Instruction

To get started, try to talk to the employee and find out why he is not doing his job. If there are no reasons for non-fulfillment of duties, and he cannot give a reasonable explanation for such behavior, offer him at his own request or by agreement of the two parties with payment of compensation for early termination employment contract. Consider that compensation is for the fact that at the stage of selecting a specialist they could not consider an employee who was not ready to work.

If this method is unacceptable for you, or the newcomer does not agree with such a proposal, then begin to collect evidence for the future justification of the reasons for the early dismissal of the employee. Give this worker written orders and tasks, with deadlines their implementation and with the requirement of a written report on the work done. Control the execution of all orders.

When you consider that there are enough convincing arguments to dismiss on time, draw up a written notice of termination of the employment contract due to unsatisfactory performance during the trial period. Please include all valid reasons for the termination in the notice. Register the notification according to the rules of document circulation. Three days before the day of dismissal, give the employee a notice, taking from him a receipt for its receipt. The employee may refuse to read the notification, then draw up an act of refusal to receive the notification and sign it with the employees present at the refusal.

Issue an order to dismiss an employee during the probationary period. Try to bring the order to the dismissed employee under the signature. If the dismissed person refuses to sign the document, make an appropriate entry about this in the order.

Make an entry in the personal card and work book of the employee in accordance with labor code, that the employment contract was terminated at the initiative of the employer due to the unsatisfactory result of work during the probationary period. In such a situation, the severance pay is not paid, and the dismissal takes place without taking into account the opinion of the primary body (trade union). The employee signs in the work book and personal card. If an employee refuses to receive a work book or does not show up for it, draw up and send to him a registered notice of the need to pick up a work book. If you refuse to receive a work book, draw up an act.

Work is not the only part of our life. It happens that, not having time to find the desired position, you have to leave it for family reasons. Another thing is also possible: a person was forced to start performing not the most suitable duties, when suddenly a dream job turned up. In these and similar cases, a number of questions arise: “How to quit for”, “What payments can you qualify for?”, “Is the employee obliged to work for two weeks or some other period?”.

An employee is included in the staff of the organization if:

• the employment contract is drawn up and signed;
• a record of employment was made in the work book;
• on this occasion, an order was issued, with the contents of which the hired person was familiarized under the signature.

The legal fact of employment (whether with or without a probationary period) quickly goes beyond the enterprise. Social insurance funds and employment promotion agencies are notified about it. Publicly initiated legal relations between the employer and the employee are subject to official termination.

And vice versa - if the papers were not drawn up, but there was an oral agreement, you can do without formalities. IP and small firms often avoid formalization at an early stage. The provisions of Art. 67 of the Labor Code of the Russian Federation establishes that:

• from the moment when a person is actually admitted to work, he is employed;
• a written employment contract must be concluded within three working days;
• if a person is already working, it is impossible to draw up a contract with the condition of probationary period.

This article is intended to protect the rights of the worker. The employer of his own free will does not recognize the fact of using unregistered wage labor. Therefore, working at its discretion can:

• just leave (with or without explanation);
• demand proper registration of labor relations and payment of wages;
• demand compensation for actual hours worked.

Common points of dismissal during trial

Article 70 of the Labor Code of the Russian Federation, by mutual agreement, allows the inclusion in the employment contract of a condition on the establishment of a probationary period. Oral agreements on this matter are not allowed. If the test is not clearly provided for in the contract, the employee is considered accepted without it.

The trial period is designed to:

• the employer could verify that the employee's candidacy met the requirements;
• the applicant had the opportunity to make sure that the established range of duties is within his power, he will get along with the team and the working conditions meet his needs.

If any of them came to the opposite conclusion, there is no need to wait until the end of the probationary period to stop cooperation. Moreover, it can be quite lengthy:

• up to three months (general rule);
• up to six - for directors, deputies of institutions, as well as their separate divisions;
• up to two weeks - when concluding a contract for a term of 2 to 6 months.

The trial period is subject to extension if it coincided with sick leave, vacation, etc.

The question of whether they can be fired on probation unambiguously suggests an affirmative answer. About the planned layoff individual entrepreneur or the administration of the institution is obliged to notify the employee under signature at least three days before this event, indicating the grounds for recognizing him as not having passed the test. In this case, termination labor contract happens:

• without taking into account the position of the trade union body;
• without severance pay.

On this occasion, an order is issued to terminate the contract. On the day of dismissal:

• full payment is made with the employee;
• he is given a labor certificate with a record of the unsatisfactory test result as the reason for dismissal and a reference to paragraph 1 of article 71 of the Labor Code of the Russian Federation.

Naturally, this fact will not contribute to further employment. If there are grounds for dismissal, it is worth agreeing to change the wording of his reasons to more favorable ones (for example, “of his own free will”). To do this, you can use a personal request or even the threat of a lawsuit. You need to apply quickly - until the labor is filled, and the information has not gone to the controlling structures. By themselves, the notice of the impending dismissal and the order are internal documents of the company, which can be rewritten without any problems.

If a person was fired on probation for far-fetched reasons, it is worth suing. Claim can sound like two things:

• on the resumption of labor relations;
• about changing the reasons for dismissal.

An improper test result must be confirmed by the employer with irrefutable evidence. Otherwise, the claim is subject to satisfaction. It is unlikely that the employee is counting on further cooperation, however, if from the moment of dismissal and until the court order he did not officially work, he will be paid wage during forced downtime. During the test period, the employee is fully covered by the regulations labor law, including the penalties. An employee may be dismissed on the general grounds specified in Art. 81 of the Labor Code for absenteeism, theft at the place of work, etc.

Letter of resignation during probation

The Labor Code of the Russian Federation adheres to the line of protecting the interests of the worker as weak side labor relations. Unlike the employer, who must motivate the dismissal, the employee does not have to do this.

If an employee wants to quit during the probationary period, it is enough for him to notify the individual entrepreneur or the administration of the institution with an application in any form. This must be done in advance - three days before the planned departure.

It happens that leaders refuse to sign such a statement. There is no point in insisting. If we are talking about a large institution where the office is physically separated from the directorate, it makes sense to copy the completed application and take it to the reception. Give the original, and ask the copy to put a mark of acceptance. It includes:

• "corner" stamp of the institution;
• current date;
• Full name, position, signature of the employee who received it.

This is the standard procedure for filing official documents. In the vast majority of cases, secretaries do not ask the manager for permission to do so. The day of registration is the date of notice of the planned dismissal. If the registration of the application failed, you can send it by courier or mail. You can prove the fact of sending using the form of a recommended letter or a valuable one with an inventory.

Deadlines and processing

Dismissal at the initiative of an employee general rule involves two weeks of work. Art. 71 of the Labor Code shortens this term during the trial period to three calendar days. When calculating, the first of them is considered the day following the date the organization received the employee's application (in person or by mail). If the last working day falls on a non-working day, you can quit on the next working day.

Circumstances for dismissal of an employee without working off

Working off is not set imperatively. If the employer is not interested in it, he can release the employee earlier. The latter has the right to demand to dismiss him on the day of filing an application in such circumstances (if there is documentary evidence):

• the spouse is sent to work in another city;
• a disease that prevents the performance of certain labor functions has been identified;
• care is required for a disabled person of group I or a sick family member;
• the appointment was made on a competitive basis;
• enrollment in full-time education;
• retirement;
• the employee is a pensioner or; a pregnant woman or a mother with a child under 14; brings up three or more children.

Other nuances

How can I quit my job at the end of my probationary period? On the last day of this period, you can quit without working off. If the next day the employee started work, he is considered to be employed on a permanent basis. Further, the dismissal at will will take place in the general mode, that is, with a two-week working off.

Probationary employment is a common practice that creates comfortable conditions to assess the applicant's ability. The employee, in turn, has the opportunity to inspect a new place and understand whether a position in this company is suitable for him. The verification period is distinguished by a simplified dismissal procedure, without unnecessary formalities and lengthy working off. At the same time, the rights of a new employee are protected by law to the same extent as when working on a permanent basis.

Why is there a probationary period?

Employees are hired on the basis of their resume and a successful interview. However, the quality of his work cannot be judged solely on the basis of the information provided. A new employee may not be able to perform the duties assigned to him. To test the competence of employees, TC (Russia) provides for the existence of a probationary period - a period during which the authorities can evaluate the skills of an employee, and he can decide whether to stay in a new place.

This stage is optional and is established only with the consent of both parties. To introduce a probationary period, it is necessary to include a corresponding clause in the employment contract. It is also indicated there during the verification period. Dismissal during the probationary period occurs according to a simplified procedure, regardless of which party was the initiator of the termination labor agreement.

How long does the verification phase take?

The duration of the trial period is determined by employers. According to the Labor Code, the probationary period can last no more than three months. A longer period is provided for candidates for those positions that require high level qualifications - management team. It can be up to six months.

According to the Labor Code (Russia), a probationary period is not introduced for the following persons:

• minors;
• pregnant women;
• mothers with children under one and a half years old;
• graduates of higher educational institutions for the first time wishing to obtain a position in their specialty no later than one year after acquiring the relevant degree;
• employees whose term of work does not exceed two months;
• specialists who are transferred from one position to another within the boundaries of the enterprise or to another workplace by agreement of employers.

The duration of the test phase cannot be extended. If it is concluded for a short period (from two to six months), the verification period cannot exceed 2 weeks.

Unregistered workers

Companies often accept employees without official registration. In such cases, the contract is not drawn up, and the corresponding entry is not left in the work book. State bodies not notified of the activities of such a person, and therefore, during his work, the authorities are not obliged to follow the formal rules and draw up papers. In these cases, work on a trial period is not used, dismissal occurs according to a simplified procedure - without formal justification and mandatory working off.

If the parties decide to sign an employment contract after the person has begun to perform duties in his position, a probationary period cannot be assigned.

Vacation and sick leave

Employees during the verification period have the same rights as other employees. So they can take sick leave. The dismissal of an employee on probation during an illness is prohibited by the laws of the Russian Federation, therefore, the employer can terminate the employment contract only upon the return of the person. If the trial period ends during the absence of a newcomer, it does not deprive the authorities of the right to fire him.

The employer can extend the verification period only at the expense of the days during which the employee was not present at the workplace. This rule is not mandatory and is valid only at the request of the head.

The employees also have the opportunity to take a vacation. However, employees can take full-time rest only after six months of work. Therefore, during the probation period, they have the right to take only a few days on vacation, which would be proportional to the hours worked.

During the verification period, the employee can evaluate the new position and understand whether the proposed position suits him. The duration of the trial stage is enough to make sure whether the person copes with the duties assigned to him, whether he is satisfied with the schedule, team or working conditions. If a person decides to terminate the contract, he can do so at any time before the end of the verification period.

Dismissal at the initiative of an employee on a probationary period is carried out on the basis of an application drawn up by him. The document must be given to the administration three days before the termination of the employment agreement. The employee is not required to justify his dismissal.

Paperwork

Voluntary care must be submitted for a Probationary period, but does not have to be nearing its end. The document is drawn up in any form. When filling out an application, it is necessary to indicate the name of the employer, the employee leaving, the date of writing and the alleged departure (not earlier than three days after the paper was submitted). There can be any reason for leaving - unwillingness to continue working in this company is already considered a good reason for leaving.

Dismissal at the request of the employer

The employer has the right to terminate the contract if he is dissatisfied with the new employee. This can be done both during the verification period and at the end of it. Dismissal during the probationary period must be justified by good reasons, confirmed by evidence that the employee is not able to cope with his duties. If the employee does not agree with the decision of the employer, he can appeal in court and be reinstated in his position. If a person does not want to return to the workplace, he has the right to demand in court a change in the reason for dismissal, as this may adversely affect his future employment. To avoid such an outcome, employers often offer to write a statement allegedly of their own free will.

Reasons for terminating a contract

If dismissal at the initiative of an employee during a probationary period, as already mentioned, does not require convincing justifications, then termination of the employment contract at the request of the employer is motivated by a certain reason. Good reasons could be:

• one or more absenteeism;
• non-compliance with the rules that should be known to the employee, are specified in the legislation or corporate norms;
• evading duties after receiving disciplinary punishment etc.

The grounds for dismissal during the review period are the same as those for ordinary employees. The employer is obliged to declare his intentions three days before the termination of the employment agreement or before the date when the probationary period ends (according to the agreement and the Labor Code of the Russian Federation). Dismissal can be justified by any of the above reasons. A wider list can be found in the legislation of Russia.

Termination of the contract at the verification stage

Termination of an employment agreement at the initiative of the employer requires careful documentation. First you need to formulate the reasons for dismissal and check whether they are solid, in accordance with the legislation of the Russian Federation.

In order to confirm the facts of poor performance by an employee of his duties, you need to find evidence of his negligence or violations. This can be confirmed by colleagues, clients who are not satisfied with his work, reports and explanatory notes regarding absenteeism.

The grounds for terminating the employment agreement must be indicated in the notice and registered in the journal. Then the document is given to the employee three days before the dismissal or the end of the probationary period. Upon the date specified in the notice, the employer must sign the relevant order, register it in the journal and obtain the employee's signature.

Calculation of severance

After issuing the order, the employer must pay the person the entire amount required. Dismissal at the initiative of an employee during a probationary period also requires the transfer of these funds. The payments that the employee receives in this case are equal to those that are transferred to employees on a permanent basis. This amount includes:

• wage;
• sick leave compensation;
• reimbursement for unused vacation.

Each employee is entitled to 28 days of vacation per year. However, termination during the probationary period occurs before the employee is entitled to full rest. In this case, compensation is calculated in proportion to the period of his work. If the company provides large quantity days for rest, they are taken into account when calculating compensation. For one unused vacation day, a former employee receives an amount equal to his daily salary. The calculation takes place according to the following formula:

• 28 (days for full vacation) : 12 (year) * N (months worked).

For example, if an employee worked for 3 months, after which he decided to quit, he is entitled to compensation for 7 days unused vacation (28: 12 * 3).

Working off

Upon termination of the contract, an ordinary employee must perform his duties for two weeks, if required by the employer. During this time, he can find another person for the vacant position. Duration additional labor different if there is a dismissal on probation. In this case, the processing time is 3 days.

This principle applies when the employment contract is terminated during the verification period. If the termination of the contract at the initiative of the superiors or the employee occurs at the end of the probationary period, working off is optional.

A person can refuse extra days in cases where he:

• is a disabled person, a pregnant woman, a pensioner, a mother of three children or a baby under 14;
• has an illness that interferes with the performance of official duties;
• caring for a disabled or sick family member;
• was enrolled in full-time education;
• retires, etc.

If a person did not declare a desire to quit at the end of the probationary period and went to work the next day, he automatically becomes an employee on a permanent basis. In such cases, the termination of the contract occurs according to the general rules, with a working off period of two weeks.

Employment history

This is the last step in the termination of the contract, which occurs after the issuance of an order and receipt by the employee necessary payments. Dismissal during the probationary period ends accordingly. It must include the reason for dismissal. If this happens at the initiative of the employer, then “unsatisfactory test result” is indicated as justification. If an employee has decided to leave the organization, then the reason can be indicated own wish. A photocopy of the work book must remain with the company in which the employee worked.

Can they be fired on probation?, is usually of interest to those who get a job with the condition of passing the test. Our material will tell you what the law says about dismissal on probation and what its reasons may be.

What does the Labor Code of the Russian Federation say about the possibility of dismissal on probation

The Labor Code of the Russian Federation gives the employer the right to arrange a test for an employee when hiring, determines the procedure for passing it, the maximum terms, as well as the conditions under which the employment contract with the employee is terminated during this period. To the question of whether it is possible to dismiss on probation, Art. 71 of the Labor Code of the Russian Federation gives an unambiguously positive answer, at the same time determining the circumstances under which the test is considered passed.

In addition, determining the conditions for the dismissal of employees based on test results, the Labor Code of the Russian Federation in Art. 70 indicates the circle of persons for whom the test is not established at all, that is, their dismissal on grounds related to the results of the probationary period is simply impossible.

Why you can be fired on probation (the main reasons for dismissal)

Grounds for dismissal on probation 2:

1. The desire of the employee.
2. The decision of the management in the presence of objective reasons.

As for the employee's initiative, in this case the Labor Code of the Russian Federation is limited to the wording that the employee has the right to quit if he considers the job unsuitable. At the same time, he is not obliged to inform the employer about the specific reasons that prompted him to refuse further cooperation.

The employer, who decided to terminate the employment contract on the grounds provided for in Art. 71 of the Labor Code of the Russian Federation, on the contrary, is obliged to inform the employee in writing about the reasons for which such a decision was made. This rule was introduced into the Labor Code in connection with the increasing cases of abuse by employers of their right to dismiss during the test.

The reason for termination of the employment contract may be a disciplinary violation. To do this, it must be recorded in the presence of witnesses and described in the relevant act. Moreover, the guilt of this particular employee must be proven. Written explanations of the employee on this matter are also required.

In addition to the above, employees on probation may also be dismissed on the grounds provided for in Art. 81 of the Labor Code of the Russian Federation:

• upon liquidation of the organization;
• change of the owner of the enterprise and refusal of the employee in connection with this to continue working;
• unwillingness of the employee to change his place of residence in connection with the change of address of the organization;
• layoffs, etc.

Also, the employee on probation is dismissed if he is not satisfied with the change in the terms of the employment contract.

How to fire an employee on probation

The process of dismissal of an employee directly depends on whose initiative the employment contract is terminated.

If the employee realized that the job did not suit him for any reason and decided to quit, Art. 71 of the Labor Code gives him such a right. At any time before the expiration of the probationary period, the employee can write a letter of resignation and, after 3 days of working off, stop labor Relations with an employer. Registration will take place in the same order as upon dismissal of one's own free will:

1. An application is written and the manager is informed of the intention to terminate the employment contract.
2. 3 days are processed.
3. A dismissal order is being issued.
4. A work book is issued, settlement payments are made. Other documents relating to labor activity employee (at his written request): copies of orders for appointment, dismissal, etc.

Normative acts do not define a sample of an employee's letter of resignation during a probationary period, therefore it is left in free form.

Some the situation is more complicated with dismissal at the discretion of the employer. The latter must not only inform the employee about the dismissal at least 3 days in advance, but also indicate in writing the reasons that prompted such a decision. These can be complaints from clients, colleagues, acts of fixing disciplinary violations, written characteristics of the immediate supervisor of the employee, documents confirming insufficient qualifications. All of these documents can act as evidence of the legitimacy of the employer's position if the employee subsequently decides to appeal his dismissal. Then a dismissal order is issued, settlement payments and a work book are issued.

IMPORTANT! The law does not oblige the employer to pay severance pay to employees dismissed under Art. 71, and inform trade union bodies. Moreover, Part 2 of Art. 71 of the Labor Code directly indicates that in case of unsatisfactory test results, dismissal is made without payment of benefits and taking into account the opinion of the trade union.

Who can't be fired on probation

In part 4 of Art. 70 of the Labor Code of the Russian Federation defines categories of workers for whom the test is not established:

• working on fixed-term contract duration of 2 months or less;
• transferred between organizations by agreement of managers;
• holding a paid elective office;
• minors;
• mothers of children under one and a half years of age;
• pregnant women;
• received a position by competition;
• first time employed after receiving a higher or secondary vocational education under programs with state accreditation (young specialists).

Note: The last benefit is valid for 1 year from the date of graduation.

At the same time, part 5 of the same norm establishes the duration of the test. As a general rule, it cannot last more than 3 months. An exception, according to which the maximum period is increased to six months, is made:

• for heads of organizations;
• deputy head of the organization;
• chief accountants;
• deputy chief accountants;
• department heads of organizations.

This measure is associated with the increased responsibility of such employees, their role in the management of the enterprise and its activities, as well as the inability to assess the effectiveness of their work in a short time.

For persons working under a fixed-term contract for a period of 2 months to six months, the maximum duration of the test is 2 weeks (part 6 of article 70 of the Labor Code). If the employee was not informed of the dismissal based on the results of the test during this period, he is considered to have passed the test - and therefore cannot be fired due to the unsatisfactory results of his results.

About the probationary period

Not to mention also this important point, as the correctness of the execution of the conditions of the probationary period. The Labor Code obliges to prescribe it directly in the employment contract. This is also confirmed by the letter of Rostrud No. 642-6-1 dated 11.03.2010. Upon employment, the employee is obliged to read, sign and receive a copy of the employment contract, which contains these provisions.

Often, the employer makes a test condition only in the order for employment, but this is not enough. In this case, the employee is considered accepted without a probationary period, therefore, it will not be possible to dismiss him based on the results of the test, just as he himself does not have the right to quit in accordance with Art. 71.

Thus, the dismissal of an employee is possible at any time of the probationary period, but only if there are grounds for this and their clear fixation.