Dismissal of an employee on probation. What is a probationary period and why is it needed, how long can it last? Who can't be put on probation

Now many employers are willing to hire employees only on a probationary basis. Thus, they plan to protect themselves from unscrupulous employees. True, many people mistakenly believe that it is much easier to carry out a dismissal during a trial period: for this, it is enough just to write an order and show the person to the door.

How to write a test condition?

We would like to note that the condition for setting a deadline for a “strength check” may not apply to all employees. This clause can be included in the contract only if the parties agree to it. That is, the employer must talk about this with the applicant in advance, and not after signing the employment contract. However, many managers simply offer the applicant to familiarize themselves and put their autograph in a pre-prepared standard form of an employment contract with already specified conditions. Thus, the test condition becomes mandatory for the applicant. This means that dismissal during the probationary period is quite possible. In such case, you have the right not to agree to such terms.

Some restrictions

Labor legislation establishes that a certain list of persons cannot be subjected to a test when hiring:

Pregnant women and women who have a child under 15 years of age.
Citizens who were chosen by competition.
Persons under the age of 18.
Applicants who have received primary, secondary or higher vocational education and get a job for the first time in their specialty within a year from the date of graduation.
Citizens elected to a paid elective office.
Employees who were invited as a transfer from another employer.
Applicants who conclude an employment contract for up to 2 months.

Remember, even if, for example, a pregnant woman or a seasonal worker consents to the establishment of a test, then such a clause will not have legal significance, and it will be impossible to dismiss as a probationary period that has not passed. And if, nevertheless, the boss decides to say goodbye to you on this basis, then this will be a violation of labor laws. The court will certainly reinstate such an employee.

Registration of an employee

If a person is hired with a test, he must write a statement where he indicates that he agrees with the establishment of a probationary period. If in employment contract nothing will be said about this, then such a condition cannot be indicated “backdating”. The criterion for passing the test may be the result of a particular work or, for example, the quality of performance official duties. The result of this entire procedure should be an order to accept a person for work with a probationary period. If the employee was actually admitted to work, then a clause on checking for compliance with the position can be included in the employment contract only if the parties agreed on this before the start of the work. Only if all these stages are executed correctly, in the future it will be possible to make dismissal during the probationary period.

Terms of verification

Except for some exceptions, the trial period cannot exceed 3 months. For the positions of heads of enterprises, their deputies, heads of branches and representative offices, persons can be hired with a probationary period of 6 months. But if labor contract is for a period of 2 to 6 months, then it is possible to check a person for professional suitability only for 2 weeks.

Subject Responsibilities

This employee should have the same rights and obligations as other employees. He should not be infringed on any powers. The peculiarity of this status is only that it is possible to make a dismissal on a trial period, and even then under certain circumstances.

There can be no reduction in wages compared to other employees, unreasonable deprivation of bonuses and other payments that are provided for by the collective agreement, there can be no provision for paying wages. In addition, the period during which the employee was on probation should be included in the total length of service. If during this period the subordinate falls ill, then he, like the rest of the employees of the company, is entitled to sick leave payments. The same requirement applies to overtime, holidays and public holidays. They must be paid according to the law. You can not involve employees in the performance of their functional duties outside of their working hours. And if there is such a need, then this can be done only with their consent (an exception may be the elimination of the causes of disasters, floods or other natural Disasters etc.) and for payment.

Test result

After the deadline for checking for compliance with the position, there can be two scenarios for the development of events: either the employee successfully passed it, or did not stand it. If the authorities decide to leave the employee, then no additional registrations will be required. If a person does not fit, but he continues to work after the end of the term, then the dismissal of the person who has not passed the probationary period will be impossible.

By law, if a person has not met the expectations of the employer, the latter must, three days before the end of the probationary period, notify the employee in writing that he will be fired. Very often, errors due to incorrect calculation of deadlines lead to litigation.

Be very careful about the start and end dates of the probationary period, as well as the prepositions that you use. For example, if you specify that the probation period is set from February 15 to May 15, you will not be able to carry out a dismissal during the probationary period on April 15. But if the deadline is set from February 15 to May 15, then the last day of the probationary period will be May 15, and it is allowed to dismiss an employee on that day.

Extension of the term

It should be noted that if during this period the employee is absent from work (illness, study leave, leave without pay, etc.), the probationary period must be extended. That is, only the period when the employee actually performed his duties is included in this period of time. Usually, employers do not favor employees who "jump" from sick leave to sick leave or go on study leave for a long time. In this case, employers try to carry out the dismissal very quickly during the probationary period. To avoid this, the employee, at least during this period, needs to leave work less and perform his duties well and within the agreed time frame.

Dismissal procedure

The manager has the authority to dismiss the employee on probation at any time. But often employers abuse this opportunity. Organizations have been known to recruit workers, set a three-month deadline for testing their professional suitability, pay a small salary, and then, at the end of the probationary period, they were fired, allegedly due to inadequacy of the position. However, the desire of the boss to say goodbye to his subordinates is not enough, he must provide supporting documents that the employee did not cope with the work assigned to him or performed it poorly. These papers can be:

Contract termination notice

Dismissal of an employee during a probationary period cannot be carried out without explanation. In such a notice, it is necessary to indicate the grounds that led to the conclusion that the employee did not pass the test. If there really are reasons for this, then the employer is obliged to inform the subordinate about this three days in advance. If the employee does not want to sign the notice, it is necessary to draw up an act to this effect.

Dismissal on one's own initiative

The employee also has the opportunity to terminate the employment contract during the trial period. Therefore, a subordinate can initiate dismissal during a probationary period. Working off for him in this case will not be two weeks, but only three days. At the same time, the employer cannot prevent the dismissal of the employee and is obliged to pay him all the money earned in a timely manner. The requirement to stay at work for 2 weeks instead of 3 days is against the law. It can be appealed, for example, to the labor inspectorate.

If you are hired only with the condition of establishing a test, then ask for a clear explanation of your terms of reference, it is desirable that you be provided with a comprehensive job description. If objective difficulties arise in the process of work or your workplace poorly organized, write memos to the employer, you can also enlist the support of witnesses.

describe you as good worker who copes with his duties, there may be no reprimands, comments or bonuses. An additional advantage may be information about awards, diplomas from a previous place of work.

If the employer decides to carry out the dismissal during the probationary period, then it can be challenged in court. If you have evidence that you did an excellent job, and the boss dismissed you completely without reason, then the court will reinstate you in your previous position. In addition, if you are fired while on study leave or sick leave, this will be a violation of labor laws.

At the same time, if you come to the conclusion that this work does not suit you, write a letter of resignation. The trial period provides for a reduced period of working out - 3 days.

Note to the employer

There are not so few cases when workers were reinstated by the court. Therefore, before pointing an employee on a trial period to the door, it is necessary to carry out such an algorithm of actions.

Notice of dismissal is sent three days before the proposed dismissal. This document states the reason for the decision. These can be: poor-quality work performed, systematic failure to fulfill one's duties, inability to meet deadlines for completing assigned tasks, etc. Please note that if a subordinate refused to sign in the notification, an act of refusal must be drawn up. Otherwise, without such a document, the employee may well be reinstated, and the employer will be forced to pay forced absenteeism and compensation for non-pecuniary damage.
Another reason when dismissal is possible is one's own desire. The probationary period implies that it is enough for the employee to work only three days, and not 14, as provided for everyone else.
A notice of dismissal must be issued. It indicates the reasons for terminating the employment contract, it is also important to refer to the clauses of the contract or job description that were violated by subordinates. The employee must familiarize himself with the order against signature.
On the day of dismissal in full settlement is made with the employee (including paid unused vacation, sick leave, etc.).
On the last day of work, the employee is issued a work book with a record of dismissal. For its receipt, the employee also puts a signature.

findings

We found out that quite a lot of nuances are contained in such a procedure as a trial period. Dismissal by own will or at the initiative of the employer during the trial period, it is possible, but the requirements of the law must be strictly observed. Ignoring the deadlines, the absence of a reason for terminating the employment contract may serve as a basis for reinstating an employee in his position. And with such a development of events, the enterprise will have to pay him wages from the day of dismissal until the court decision is made, hire him again and pay a certain amount of material compensation. That is why it is so important to adhere to all requirements of the law.

Dismissal on probation may be illegal under certain conditions. You fired for failing probation? Or they threaten you with dismissal under this article and ask you to quit of your own free will, since did not pass probation? Why do you think the director is talking about this? Yes, because he does not know how to do everything without violations, or they already exist and cannot be corrected.

Let's not be afraid of threats or already existing record in work book, but let's think: did the employer do everything right? After all dismissal of those who did not pass the probationary period the procedure is not very simple.

And in most cases, significant mistakes can be made, in the presence of which it is possible to restore your job in a judicial proceeding. Although recovery in most cases is not the most the best way. The working climate will no longer be the same. It is best to challenge the dismissal, its legality, recover and quit of your own free will. Or change the wording of the reason for dismissal and the date.

Why go to court if you were illegally fired, as if you had not passed the probationary period?

First, you will change the wording of the dismissal in the work book.

Secondly, in case of illegal dismissal, one can demand payment of the average wages for the period of deprivation of the opportunity to work (Article 234 of the Labor Code of the Russian Federation).

Thirdly, compensation for non-pecuniary damage can be demanded (Article 237 of the Labor Code of the Russian Federation).

First of all, let's see if the employer did everything right so that dismissal during probation was considered legal.

How is a test condition set?

Established in the employment contract. There is no entry in the contract about this? There is no probationary period (Article 70 of the Labor Code of the Russian Federation). In this case dismissal as not having passed the probationary period in principle impossible, since there is no basis.

If you started work without an employment contract, then a probationary agreement must be signed before starting work, but not after you have started to perform duties. It may be a separate document. Only in this case, the employer has the right to include this condition in the employment contract, which he will draw up later.

Who should not be tested?

There are categories of workers who are generally prohibited from establishing a probationary period: pregnant women and women with children under one and a half years old, those who are elected by competition for positions, underage workers, workers who have graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time entering work in the acquired specialty within one year from the date of graduation from an educational institution, persons elected to an elective position for paid work, those who are invited by the order of transfer from another employer as agreed between employers, employees concluding an employment contract for a period of up to two months.

Also, a probationary period cannot be established for students upon graduation (vocational training) from this employer. It is not established when transferring to another position.

If a woman was put on probation, and then she turned out to be pregnant, then she cannot be fired as having not passed her probationary period.

How long can the test be?

Probationary period for employment may not exceed three months, and for heads of organizations, deputies, chief accountants and their deputies, heads of separate structural divisions of organizations - six months.

If the contract is concluded for a period of two to six months, then the probationary period cannot be more than two weeks (Article 70 of the Labor Code of the Russian Federation)

If you have a trial period of 2 months, then it cannot be extended. Can only be canceled ahead of time by agreement of the parties. You yourself may not agree to a reduction in the probationary period, since at this time you can quit of your own free will, warning the employer 3 days in advance, and not 2 weeks in advance, as is established for other categories of workers.

If the trial period has expired and you continue to work, then you are considered to have passed it. At the end of the term fired for failing probation it is forbidden. But! The period established by the contract does not include the time when the employee was absent from work, for example, days of incapacity for work.

Is it possible to be fired during the probationary period for other reasons?

Dismissal during the probationary period is also possible for other reasons provided for by the Labor Code of the Russian Federation: both by agreement of the parties, and at the initiative of the employer (liquidation, reduction, failure to perform labor duties, etc.). Dismissal made on other grounds may also be declared illegal.

What guarantees apply to the employee during the probationary period?

All the guarantees provided for by the Labor Code of the Russian Federation apply to the employee while he is on probation. For example, when reducing staff (liquidation), he is also entitled to severance pay. You also need to draw up an employment contract with him and make an entry in the work book. He is also paid for the time of disability, downtime, etc.

And the condition on wages is illegal when they tell you that you will now receive 15 thousand, and after the probationary period 30 thousand. True, depending on how you apply. If you are the only employee in this position, then the staffing table changes and that's it. But if at least one other employee with a large salary works in the same position besides you, then this is illegal.

How is dismissal at the initiative of the employer carried out if you do not pass the test?

4 conditions must be met for such a dismissal to be considered legal (Article 71 of the Labor Code of the Russian Federation).

- The employer must warn that you have not passed the probationary period 3 days before the dismissal. He cannot announce this to you today and fire you today.

— The warning must be given in writing under painting. There is no written notice - did not warn - the dismissal is illegal. If you refuse to sign, then an appropriate act is drawn up.

— The date of dismissal must be within the probationary period. After the expiration of the term, dismissal on this basis is illegal.

- The most interesting thing that employers pierce: the notice must indicate the reasons that served as the basis for recognizing the employee as not having passed the probationary period! And in order to indicate these reasons, it is necessary to monitor the employee for all months, fix delays, violations of discipline, failure to perform duties, etc. It is best if the employee is given a job assignment against signature and the result of the work is accepted. Tell me, who's employer did this? I haven't met any.

In the article, we remind employers of the procedure for establishing a probationary period. For examples from judicial practice let's pay attention to the mistakes that employers make when dismissing an employee who has not passed the test.

Who is not on probation?

Not all potential employees can be placed on probation. If the employer includes a test condition in an employment contract with a person who is prohibited from establishing a test, this condition will not be valid (part 2 of article 9 of the Labor Code of the Russian Federation).

The list of persons is determined by Part 4 of Art. 70, Art. 207 of the Labor Code of the Russian Federation and other federal laws:

pregnant women and women with children under the age of one and a half years;
under the age of 18;
have received a secondary vocational education or higher education according to state-accredited educational programs and for the first time entering work in the acquired specialty within one year from the date of receiving professional education of the appropriate level;
concluding an employment contract for a period of up to two months;
invited to work in the order of transfer from another employer as agreed between employers;
successfully completed apprenticeship - when concluding an employment contract with the employer, under the contract with which they were trained (Article 207 of the Labor Code of the Russian Federation), etc.

If an employer places a probationary period on any of the listed persons, moreover, dismissed as not having passed the test, he can be held administratively liable. The employee who applied to the court will be reinstated.

If, before the end of the probationary period, the employer finds out that the employee belongs to the category of persons for whom the probation is impossible, it is necessary to amend the employment contract. In this case, it is necessary to conclude to it supplementary agreement, which cancel the test condition. Based on the agreement, an appropriate order should be issued.

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The procedure for terminating an employment contract with an employee who has not passed the test

The procedure for establishing a test for employment is established in Art. 70 of the Labor Code of the Russian Federation.

Step 1. The condition of a probationary period for an employee must be included directly in his employment contract. The absence of such a condition in the employment contract means that the employee is hired without a test.

The period of probation for employees may not exceed three months. For heads of organizations and their deputies, chief accountants and their deputies, heads of branches - six months. When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.

The probationary period does not include any periods of the employee's actual absence from work, including periods when the employee is on short-term leave without pay or on leave in connection with training, the performance of state or public duties, the period of absence of the employee from work without good reason (period absenteeism), a period of downtime, if the employee was absent from work during the downtime (Determination of the Supreme Court of the Russian Federation dated 04.08.2006 No. 5-В06-76). But it is impossible to dismiss an employee due to an unsatisfactory test result while he is on vacation or on sick leave.

Step 2 Based on the employment contract, which contains a condition on the establishment of a probationary period, the employer issues an order stating that the employee has been accepted with a probationary period, and indicates the period of such a probation.

We draw the attention of employers, if the condition of the test and its period are established only in the order, while not established by the employment contract, in this case, the employee will be considered hired without a test.

If an employee fails to perform his job duties during the probationary period, the employer has the right to dismiss him. The procedure for dismissal of an employee who has shown an unsatisfactory result is established by 71 of the Labor Code of the Russian Federation.

Step 3 The employer must confirm that the employee is not coping with work, because the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer (paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). In order not to become a defendant in litigation, it is advisable to create a work plan for the employee for a trial period, keep a log for monitoring the passage of the test, and request reports from the employee on completed tasks.

Step 4 Your decision to dismiss an employee must be supported by a number of documents. It can be:

various kinds of acts confirming the non-performance or poor-quality performance of the work assigned to the employee, stipulated by the employment contract or job description;
memorandum (official) notes or reports of the immediate supervisor of the employee or the person responsible for evaluating the test results;
witness's testimonies;
"peculiar" attestation (test) sheet and minutes of the meeting of the "peculiar" attestation (test) commission;
orders to apply to an employee disciplinary action(which is not disputed or not disputed);
written complaints (claims) from customers.

By the way, sometimes one memorandum (service) note may be enough to dismiss an employee. There is such a case in jurisprudence. The reason for the dismissal was a memo from the immediate supervisor of the employee. The document stated that the employee does not correspond to the position in terms of the quality of work performed, he is lazy and lacks initiative in his work. AT memo contained a proposal to terminate the employment contract with the employee as having not passed the test when hiring. The dismissal was recognized as lawful (Determination of the Leningrad regional court dated 07.12.2011 No. 33-5827/2011).

Step 5. It is necessary to warn the employee about the termination of the employment contract in writing: the facts indicating that the employee did not pass the test are recorded in the relevant act. This must be done no later than three days before the dismissal.

There is a case in judicial practice when the corresponding notice was drawn up and handed over to the employee only two days before the termination of the employment contract. The court recognized the dismissal of an employee as legal, even though the employer violated the dismissal procedure provided for in Art. 71 of the Labor Code of the Russian Federation (Cassation ruling of the St. Petersburg City Court dated August 29, 2011 No. 33-13139 / 2011).

A warning

Dear V.V. Smirnov!

In accordance with Art. 71 of the Labor Code of the Russian Federation, we warn you that the employment contract concluded with you is subject to early termination due to the fact that you are recognized as not having passed the test provided for by the employment contract, due to inconsistency with the position held and repeated violation labor discipline and internal regulations organizations.

Thank you for your work. You will be additionally informed about the procedure for settlement with the enterprise by your immediate supervisor.

We wish you all the best.

General Director Petrov S.S.

(title of the person who signed the document)

personal signature I.O. Surname

Date 18.07.2017

INTRODUCED

Job title personal signature ____________

(indicated by the employee by hand)

In the written notice of dismissal given to the employee, the employer must indicate the reasons for the dismissal. If the employee does not agree with the position of the employer, then this decision can be appealed in court. An analysis of judicial practice shows that the disputes considered by the courts are connected precisely with the violation by the employer of the procedure for dismissing an employee who has not passed the probationary period.

Step 6 So, the employee received a notice, signed, now after three days the employer issues a dismissal order, with which the employee must also be familiarized against signature. The following entry is made in the work book: “The employment contract was terminated due to the unsatisfactory test result, part one of Article 71 of the Labor Code Russian Federation».

If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation and the subsequent termination of the employment contract is allowed only on a general basis.

Step 7 On the day of termination of the employment contract, the employer is obliged to issue a work book to the employee and make settlements with him with the payment of all amounts due to the employee.

Also Art. 71 of the Labor Code of the Russian Federation establishes that if, during the probationary period, a newcomer comes to the conclusion that the job offered to him is not suitable for him, he has the right to terminate the employment contract at his own request, notifying the employer about this in writing in the same three days. That is, not only the employer can fire an employee on probation, but the employee himself can decide that the chosen company does not meet his expectations: career or salary - it doesn’t matter.

If the trial period was not enough to evaluate the ability of the employee ...

Then, by agreement with the employee, the probationary period can be extended by another month. True, Rostrud officials in Letter No. 520-6-1 dated March 2, 2011 argue that the possibility of extending the probationary period by amending the employment contract labor law RF is not included. Their opinion on this issue is the only one, since there are no other explanations, it is up to the employer to stick to it or ignore it.

Rostrud is not opposed to reducing the probationary period if the employee quickly showed himself in the best possible way. Letter No. 1329-6-1 dated May 17, 2011 concluded that, by mutual agreement, the parties have the right to conclude an additional agreement to the employment contract to reduce the probationary period. These changes will not be contrary to labor laws.

Dismissal of a part-time worker

The employer must notify the employee in writing of his intention to terminate the employment contract with the part-time worker on this basis at least two weeks before the expected date of dismissal.

The employer is not obliged to offer another job to a part-time worker. This is his right if the enterprise has other work that the employee can perform on a combination basis. If there is no such job or the employee refused the proposed option, then he is subject to dismissal and continues his work in the future. labor activity only at the main place of work. The refusal of the employee must be recorded in writing in the form, on its basis, the employer issues an order (instruction) to dismiss the employee with the execution of the documents listed above.

If the employer can offer the part-time job, which he does part-time, as the main one, then with the consent of the employee, it is necessary to conclude a new employment contract on new conditions or conclude an agreement on changing the terms of the employment contract.

If this option is not suitable for the employee and he refused the offer of the employer, then the part-time worker is subject to dismissal. Based on the considered written application, the employer issues an order (instruction) to dismiss the employee with the execution of the above documents.

findings

Summing up, once again pay attention to the main points that will help the employer avoid litigation. Everyone should remember them when setting a probationary period and dismissing an employee who has not completed the test.

Not all employees can be placed on probation. Dismissal on the basis of a probationary period of a temporarily disabled employee, a pregnant woman or a woman with a child under the age of three is unlawful;
The test is considered established if corresponding condition included in the employment contract. The absence of a probationary period clause in the employment contract makes it unlawful to subsequently apply the probationary period clause, even if it is enshrined in the collective agreement and other local acts (employment order, job description, etc.);
Test results must be documented;
To dismiss an employee based on the results of the probationary period, the employer must indicate in writing the reasons why he was recognized as not having passed the probation, as well as document this fact;
The employee must receive notice no later than three days before the dismissal.

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Establishing a probationary period when concluding an employment agreement is not mandatory, but employers often resort to a similar method of testing new employees. This is done in order to facilitate the dismissal of unsuitable personnel. However, before dismissing an employee on probation, it is necessary to carefully consider what grounds will form the basis of the order to terminate the employment agreement.

The condition of the test, which is established when hiring, also plays the role of one of the ways to protect the interests of the employee himself. If the situation in the new place for some reason does not suit the accepted employee, he will not have to work for two weeks in connection with the dismissal of his own free will. Thus, the establishment of a condition for passing a probationary period also protects the rights of an accepted employee.

Test period

In accordance with Article 70 of the Labor Code of the Russian Federation, the deadline for establishing a test is limited to three months in normal cases, and six in the case of hiring employees for the positions of managers, relevant deputies and chief accountants. The maximum duration of the probationary period is reduced to two weeks if the employment contract is concluded for a short period of 2 to 6 months. The specified terms cannot be changed upwards by agreement of the parties, with the exception of cases provided for by federal law.

For example, according to paragraph 1 of Art. 27 FZ dated July 27, 2004 No. 79? FZ "On the public service of the Russian Federation", when adopted for public service a probationary period of 3 months to 1 year may be established.

It must also be remembered that the trial period does not include days of actual absence from work for good reasons (sick leave, vacation, etc.).

How to get fired on probation

Both the employer and the employee can act as the initiator of the termination of the work contract during the probationary period. However, Article 71 of the Labor Code of the Russian Federation provides that there is an obligation for an employee to work for three days after submitting an application. This rule greatly simplifies the life of an employee who needs to terminate an employment relationship in a short time, for example, if a more favorable job offer has been received.

The employer, before dismissing an unsuitable employee during the probationary period, is obliged to warn about decision in the manner prescribed by law. That is, no later than three days before the actual termination of the employment relationship, the employee must be informed about the date and reasons for termination of the employment agreement. If the person was not informed of such a decision, and after the end of the specified in the agreement trial period, continues to perform his functional responsibilities, it is considered that the employee has successfully passed all the conditions of the test and his subsequent dismissal is possible only in a general manner.

In all cases, before making a decision and dismissing an unsuitable employee at the end of the probationary period, one should carefully approach the execution of related documents, since these actions can be challenged in court.

Prohibition of preliminary testing

As a rule, the goal of an employer who makes such a condition in an agreement is the quick and painless dismissal of incompetent employees. However, when deciding whether it is possible to dismiss an employee during a probationary period, employers often forget that there is a list of persons who, in accordance with Art. 70 of the Labor Code of the Russian Federation does not initially establish a probationary period. In connection with this prohibition, such employees can only be dismissed in accordance with the general procedure, on the grounds provided for in the thirteenth chapter of the Labor Code of the Russian Federation.

selected by competition)
pregnant women and those with children under the age of 1.5 years, women)
persons under the age of eighteen)
young professionals (within one year from the date of graduation from a state educational institution))
elected to office)
invited in translation order)
concluded an employment contract, lasting up to 2 months.

Federal laws and the collective agreement may also provide for other categories of citizens who, when hiring, cannot include such a condition in the labor agreement.

The correct algorithm for issuing supporting documents

An employee who was fired during a probationary period due to an unsatisfactory result has the right to appeal against such actions of the employer in court. Since by default the court always takes the side of the dismissed employee, the employer needs to have strong evidence of his innocence. The key to a successful trial is properly executed documents confirming that the employee failed the test. It is recommended that the Human Resources department perform the following steps in order to prepare the appropriate evidence of correctness.

In any case, employee errors must be recorded and documented in writing: the following can serve as confirmation:

Reporting)
Memos from the immediate supervisor on violation by the employee of the job description or employment contract)
disciplinary orders)
Written comments
Acts on poor performance of work.

It is advisable to acquaint the employee with such documents against signature, and after each “miss” require an explanatory note.

In the case when the above documents are not available, and all instructions were given to the employee orally, it is necessary to create a special commission at the enterprise to determine the results of passing the test and recommend how the employee can be dismissed on probation without violating the law. The corresponding decision must be formalized in the protocol.

Dismissal Notice

If, nevertheless, a final decision is made that the employee is not suitable for the duties of the vacant position, he must be warned about the upcoming dismissal. The notice period cannot be less than three days before the day of dismissal and the end of the probationary period (part 1 of article 71 of the Labor Code of the Russian Federation). Thus, the question that often arises as to whether it is possible to dismiss before the end of the probationary period has an unambiguously positive answer.

On the notification, the employee must put his signature on familiarization and the corresponding date of delivery of the copy.

In case of violation of the three-day period and the end of the trial period, failure to pass the test will not be the basis for terminating the employment agreement. An employee, in this case, can be fired only on general grounds.

You will need

- notification;
- order;
- an act of violation (if the dismissal occurs after the probationary period at the initiative of the employer);
- a written document on the punishment.

Instruction

If you plan to dismiss an employee as having not passed the probationary period, then this must be done before it ends. If you did not complete the dismissal procedure, and the employee started working after completion of probationary deadline, you can dismiss him only on the general grounds provided for by the Labor Code of the Russian Federation.

To fire someone who has not completed probation, give written notice three days before the planned termination. Present the notice to the employee against receipt. After the specified period, you have the right to terminate the employment contract, indicating the reason "Probationary period has not passed."

An employee also has the right to quit during probation deadline, if he found more or the position for which he got a job, it doesn’t suit him, but he is obliged to warn you three days before dismissal.

You do not have the right to establish a probationary period for employees hired on a competitive basis, pregnant women and women with children under one and a half years old. As well as minors sent to you after graduates of accredited government institutions, specialists in elected positions, transferred and temporary employees.

If you are not an employee during probation deadline or in after day of the test, then you can terminate the employment contract at the initiative of the employee or on your own initiative. If you terminate the contract on your own initiative, you must have a good reason for termination labor relations and fulfill a number of legal requirements.

Labor stipulates that after completion of probationary deadline the employer has the right to dismiss financially responsible persons for distrust, for a rude attitude towards, all other employees for a number of violations. At the same time, you are obliged to draw up an act of violations, issue a written punishment, present all the documents drawn up against receipt to the employee, and only after to terminate the employment contract.

Currently, such a form of employment as a probationary period is becoming more and more popular. The period that is given to an employee to convince the employer of his professional suitability must be properly drawn up.

Instruction

First of all, in Labor Code restrictions are stipulated for certain categories of workers who cannot be hired with a probationary period. These include pregnant women and those who have children under the age of one and a half years, as well as minor citizens and young professionals - graduates of professional educational institutions. In this case, a citizen applying for a job is obliged to provide the employer with documents confirming his status.

Special attention should focus on young professionals. A probationary period for them may not be established and not stipulated in the employment contract only if a number of conditions are met. So, after graduating from an educational institution should not pass more than a year and the vacancy for which the employee applies must correspond to the specialty that he received at the university. Besides, educational institution must have state accreditation, and the work book of the employee should not contain records that he has already acquired in his specialty production experience. An employee of the personnel department must check that the letter of the law has not been violated, because otherwise, according to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, an administrative fine may be imposed on the enterprise or its activities may be suspended.

In accordance with Article 70 of the Labor Code of the Russian Federation, the maximum duration of the probationary period is set at 3 months, the employer has the right to shorten it or even extend it if it is set for a shorter time in the employment contract. True, in the second case, for this you will need to sign the consent of the employee, because the probationary period and its duration are essential conditions of the initially signed employment contract.