Dismissal of an employee who did not pass probation is one of the grounds for dismissal at the initiative of the employer. In practice, dismissal on this basis causes difficulties for employers.
For the dismissal of an employee on this basis, one statement by the director that the employee did not cope during the trial period is not enough. Stronger arguments are needed for dismissal due to an unsatisfactory test result.
In order for the employer to be able to dismiss the employee on this basis, he must begin collecting documents confirming the reason for dismissal from the moment the employee is hired. Documents confirming the employee’s mistakes, drawn up and dated by different dates, will not raise doubts about their reliability from the court in the event of a litigation. A clear and detailed test plan, written reports from the employee, feedback from his supervisor and fixing all violations will deprive the employee of a chance to win. But in order for the evidence collected to have an effect in court, the employer must notify the employee of the dismissal. Otherwise, the result will be exactly the opposite, since the courts consider the violation of the procedure to be a material violation of labor law, entailing the reinstatement of the employee at work.
Employees who cannot be fired due tounsatisfactory test result
Labor legislation prohibits the dismissal of the following categories of workers on this basis:
pregnant women
Women with a child under the age of 3
Single mothers and fathers with a child under 14 or with a disabled child
Supporters of a disabled child
Supporters of a child under 3 years of age in a family with three or more children.
The job description will greatly facilitate the task of dismissing a newcomer.
There are two types of evidence used in reinstatement litigation:
- documentaries
- witness's testimonies.
Three main documents are distinguished from the first category: labor contract, job description and work plan. With their help, you can compare the volume and content of the assigned and completed work. When compiling these documents, you should pay attention to the following points.
The employment contract must indicate the position of the employee, determine his labor function, and fix the probationary condition. In the employment contract, only the name of the employee's position is prescribed, and the content of the labor function is disclosed in detail in the job (production) instruction. But the employer can include a list of the rights and obligations of the employee in the contract.
So that the employee does not declare in court that he was hired without a test, it is advisable for the parties to sign each sheet, and not just the last page of the document. If the employment contract is drawn up on several sheets, it is better to flash it, make a certification sticker with an inscription on the number of sheets, pages and signatures of the parties to the contract. This will confirm the safety of the document in its original form.
If the employment contract does not contain a list of duties or specific tasks, it is necessary to develop a job description. It, along with the employment contract, will act as evidence that the employee is not coping with his duties. The employee must be made aware of job description before starting work.
The presence of a job description will greatly facilitate the procedure for proving non-performance or improper performance of work. If you don't define a circle functional duties by position and not bring this information to the employee, then the risk of recognition of dismissal under Part 1 of Art. 71 of the Labor Code of the Russian Federation illegal.
The job description must correspond to the type of activity that the employee hired with a probationary period will be engaged in. You should not familiarize the employee with instructions for similar or related work. This will lead to unfortunate consequences, since if the court establishes the fact of fulfilling someone else's duties, it will make a decision to reinstate the employee at work.
Thus, it is possible to understand whether an employee has passed the test or not if there are documents that describe in detail his duties in his position. Otherwise, the employer will not have grounds for a charge. young worker in violation of certain provisions of the employment contract or local act.
It is impossible to dismiss an employee on the grounds under investigation if there is no test clause in the employment contract. At the same time, the presence of a condition on a probationary period in the order for employment will not correct the situation. According to the law, an employment contract must first be concluded with a probationary condition, and only after that an order is issued. Violation of this rule entails the reinstatement of the employee at work. Moreover, it is impossible to do this when there is no employment contract, and the parties, by virtue of Part 2 of Art. 70 of the Labor Code of the Russian Federation did not conclude a separate test agreement before the start of work.
Some employers, after signing an employment contract without a probationary period, ask to re-sign it, but with a probationary condition. The court may regard this as an attempt to supplement the contract with a missing condition and point out the inadmissibility of such actions.
A test is an additional condition that is established only at the conclusion of an employment contract, and its additions are possible only in relation to mandatory conditions and information (part 3 of article 57 of the Labor Code of the Russian Federation).
The employer must familiarize the worker with the test plan before starting work.
The test plan is not required by law, but it will be very useful for concretizing the tasks assigned to the certain period time and will serve well in the event of a litigation.
The work plan indicates tasks and assignments, specific dates for their implementation and the type of reporting. The plan should provide a special column for marks on the completion or non-fulfillment, partial execution of tasks.
It is necessary to familiarize the employee with the work plan before he starts work, and not on the eve of dismissal.
Employers win court cases when they inform employees in advance detailed plans forthcoming work with a description of the planned result. In this case, employees cannot prove ignorance of the assigned tasks.
If the employee refuses to confirm familiarization with the documents with a signature and ignore the instructions of the head, it is necessary to draw up appropriate acts with the involvement of witnesses. These acts will be another proof of the unsatisfactory test result.
The employee should be provided with everything necessary to perform the assigned tasks. After establishing the conditions for testing, the employer is obliged to organize the work of the employee, create normal working conditions for him, ensure labor protection, systematic remuneration for actual work according to predetermined standards.
Therefore, if the employee proves that he was not provided with the above, then counterarguments will be needed.
What indicates a failed test
Failure to meet forecast targets
Repeated failure to perform duties
Lateness and absenteeism
Complaints from customers and contractors.
All evidence of an unsatisfactory test must be recorded and certified ... Each document must contain details; they will refute arguments about forgery, falsification or forgery. These include certifying signatures, marks of registration or proper certification (for copies). The employee must be assigned a mentor, if provided. local act. Mentors help young workers quickly get up to speed and monitor the results of their work during the trial period. The mentor must be
an experienced employee who will have to really control the testing process and record the achievements and failures of a new employee, participate in his training. Otherwise, the court may consider the assessment subjective, and the conclusions about the failure of the test - unreasonable.
Warning about the dismissal of an employee who has not passed the probationary period
When the employer comes to the conclusion that the employee is not coping with the work, he must be warned about the upcoming dismissal. Notice of dismissal must be writing at least 3 days before the expiration of the test period (the last day of work). Such a document is called a “warning” or “notification” and is drawn up in any form. The employer is not obliged to wait for the end of the probationary period specified in the employment contract, and has the right to terminate it earlier, for example, after 2, and not 3 months after the start of work.
If the end of the probation period coincides with the employee's day off, then the day of dismissal will be the next working day following the day off. In order to deprive the employee of the opportunity to reproach the employer for missing the deadline and violating the procedure, it is better not to delay the warning and do it in advance, with a margin of several days, especially if the notification is sent by mail. Violation of the deadline or non-delivery of the document leads to the reinstatement of the employee.
You can be fired for failing a test without disciplinary action.
The application of disciplinary measures to an employee is not prerequisite procedures for terminating the employment contract on this basis.
Deadlines for dismissal due to unsatisfactory probation
The employer must inform the employee of the reasons for not passing the test.
To do this, use the employment contract, job description and work plan. It is advisable to use all means confirming the low professional level of an employee, including customer complaints and negative feedback from counterparties. The position of the employer will be strengthened by written claims with reference to the employee's poor performance of his duties, his incompetence in negotiating and ignorance of the product being presented.
The warning or notice should not use general wording such as: “did not fulfill the requirements of the employment contract”, “violated the job description”. The employer must make a link to specific sections, clauses of the contract, instructions, provide the details of the complaint or letter, and also describe the actions or inaction of the employee that indicate a violation. The more detailed the description, the easier it is to prove the validity of the employer's decision in court.
If an employee refuses to sign for receiving a notice or warning, the employer must read this document aloud to the employee in the presence of witnesses. After that, the employer must draw up an appropriate act with the same witnesses.
If an employee disappears from the workplace in order to delay the deadlines, then a warning is sent by a valuable letter with a return receipt and a description of the attachment to all known addresses. However, it should be remembered that the court will read the notice only if the employer provides proof of service of the letter. Sending such a document without registering with the organization, an error in the employee's home address, no attempts to contact him and report a notification or warning will play in favor of the employee.
Witness's testimonies
The lack of documentary evidence is made up by testimonies
It is far from always that visitors to the organization or its partners write unflattering reviews about the company's employees in the book of complaints and suggestions, or write letters describing blunders in their activities. Sometimes the head of the organization learns about the dissatisfaction with the work of a new employee from the oral stories of his colleagues.
Witness testimony is one of the ways to confirm compliance with the procedure and the legality of dismissal under Part 1 of Art. 71 of the Labor Code of the Russian Federation. The information presented in court by colleagues has real power and is accepted on a par with documentary evidence: office, memorandum, explanatory notes, reports of the employee and his manager, work plan, etc.
In some cases, with an insufficient number of documents, the testimony of colleagues plays a decisive role. As a rule, in court, dismissed workers refer to the dependent position of witnesses from the employer and ask the court to evaluate their testimony critically. The court will accept the testimony of such witnesses, provided that they are consistent, consistent with each other and do not contradict written evidence.
A test in the first months of being in a new position is a normal offer from an employer who wants to take a closer look at a specialist and try him “in action”. If a person fails the test by stumbling into professionally or following the rules work schedule, then the employer has the right to refuse him a place in a simplified mode, having issued this as a dismissal of a person who has not passed the probationary period.
Reasons for failing probation
Go to new job is always associated with stress, so for many, the trial period can be a serious test not only for a professional, but also as a person with strong nerves. The understanding that each company has its own specifics does not add confidence, especially if not only the place of work, but also the field of activity changes.
Depending on how the circumstances have developed, you can fail the probationary period for several reasons:
- low qualification;
- indiscipline;
- refusal to comply corporate rules and procedures;
- poor learning;
- personal troubles.
If the employee himself noticed something similar, he can initiate his dismissal without waiting for the employer's feedback. If a specialist is unable to objectively assess his capabilities, management will express its opinion in the form of dismissal of an employee who has not passed the probationary period.
When to remove an unsuitable employee from service?
In order for the results of the test to become the reason for terminating the contract, it must not only be fixed in the employment contract, but also a lot of time and effort must be devoted to the trial process:
- Make a test plan.
- Develop a monitoring and evaluation system.
- Assign a person responsible for the training and adaptation of the newcomer.
- Familiarize the employee with individual plan, internal regulations, conduct a briefing on labor protection and safety, and most importantly, with a job description and a list of tasks and responsibilities.
- Set up feedback and a system of interaction with the employee.
It is necessary to make a decision that dismissal is inevitable due to the fact that a person has not passed the probationary period, if enough facts have been accumulated about violations of any of the company's internal regulations, art. 71 of the Labor Code of the Russian Federation.
Notice of settlement within the next three days can be served during the trial period. If the employer hesitated with the conclusions, then the dismissal procedure will be much more difficult, and the provisions of Art. 71 of the Labor Code of the Russian Federation, you need to look for a reason, based on the points of Art. 81 of the Labor Code of the Russian Federation.
If during the trial period there were no obvious reasons for parting, the employer is left to look for flaws in the employee in terms of discipline:
- absenteeism, tardiness, unreasonable absences;
- indulging in alcohol or more dangerous substances;
- systematic failure labor functions;
- violations of labor protection requirements.
How to dismiss an employee, documents required for dismissal?
From the point of view of the organization, the probationary period for the employer is no less laborious than for the employee himself. By the time the final decision is made, management should have:
- training and adaptation plan (signed by the employee);
- test reports;
- reports from a mentor, complaints from clients, explanatory notes from the employee himself;
- acts of violation of discipline, if any.
But, if everything is thought out, executed on time, and most importantly, it was carried out not “for show”, but to achieve a positive result, then in order to successfully complete cooperation, it is enough to follow a simple step-by-step instruction.
Dismissal procedure
The procedure for dismissal of a specialist who has not passed the trial period must be initiated no later than three days before the end of the trial period. Starting the termination process will give notice to the employee.
Employee termination notice
Article 71 of the Labor Code of the Russian Federation requires the employer to provide a written statement of the reasons for termination labor relations. This can be done in a free form, but always with a clarification of the reason, a reference to the contract, test regulations, internal orders and regulations. It is necessary to acquaint the subject with the notice of dismissal against signature, and if he refuses to leave an autograph, then this fact must be witnessed by at least two disinterested persons.
Pletter of dismissal
When drawing up an order to terminate an employment contract, it is not the process of filling out the form in the T-8 form that is complicated. The main thing is to decide on the wording, because sometimes peace is more precious than truth. Even if the employer has enough evidence that the trial period was unsuccessful, it is not at all necessary to immediately file this as the dismissal of an employee who did not pass the trial period. There are several options, some of which will suit both parties and will not be a reason to go anywhere with complaints:
| The wording of the grounds for dismissal in the order | Benefits for the employer | Benefits for the employee |
| Agreement of the parties, paragraph 3 of Art. 77 Labor Code of the Russian Federation | Allows you to dismiss an employee quickly and without the prospect of a labor dispute The employee's application cannot be withdrawn |
Quick dismissal without working off 14 days Possibility to register as unemployed "Good" entry in the labor |
| Own initiative, paragraph 3 of Art. 77 TC | The employer does not need to justify the reasons for dismissal. Short notice period (3 days) reduces the possibility of withdrawal of the application for resignation |
The employer may refuse to comply with the notice period requirement (3 days). At the next employment, there will be no need to explain the reasons and circumstances |
| Unsatisfactory test results, art. 71 Labor Code of the Russian Federation | If everything is in order with documentary evidence, then you can not make “deals with conscience”. No need to pay severance pay. |
If the test is not passed due to disciplinary violations, then it is better to get a record of failure in operation than of gross violation labor rules. |
You need to talk with the employee before drawing up the order, so that later you do not prove your case to the labor inspector or in court. Depending on the results of the conversation, the reason and basis indicated in the order and work book.
Calculation
Any person hired under an employment contract has the right to receive all settlements in full upon dismissal, without reservations about a probationary period. And while unscrupulous employers try to convince the inexperienced candidate that an unpaid trial period is normal practice, there is not a word of truth in this statement. All days and hours worked are subject to payment in accordance with the salary in the staffing table. The employer can save only on the size of the bonus.
In the same way, it will be fair to note that on the day of dismissal (Article 140 of the Labor Code of the Russian Federation), the employee must receive an uncontested part of the accrued:
- compensation for vacation (for three months - this is at least 7 days);
- per diem and expenses incurred (if the employee was on a business trip);
- severance pay under a collective agreement (but only if the dismissal was issued without mentioning Article 71 of the Labor Code of the Russian Federation).
Labor legislation does not contain provisions on free work during the test period.
Issuance of a work book
Following the money, the personnel service must return to the former employee his work book, art. 84.1 of the Labor Code of the Russian Federation. The dismissal record must be duplicated from the relevant order of the management. In the most unfavorable case, it will be written on the pages of the labor that the calculation was issued due to unsatisfactory test results, art. 71 of the Labor Code of the Russian Federation.
Even if the person did not appear for his documents, only the personnel officer who, no later than the day following the dismissal, sent the employee a letter with a proposal to pick up the book or give permission to send it by mail, can consider his mission fully completed. Up to this point and for another 75 years after the date of publication of the order, the labor must be carefully stored in the archives of the enterprise.
Unwanted Consequences
Most failed probationary periods do not find their mention in the dismissal orders and on the labor pages. And this is explained not by the kindness of employers, but by their desire to reduce risks and avoid unnecessary paperwork. Every manager knows that even if he knows how to fire someone who hasn't passed his probationary period, and there are many reasons for this, the procedure for such a parting with the staff is too laborious.
In addition, it is well known that the more documents, the higher the likelihood of finding grounds for going to court in them. And how things will turn out there, and whether the dismissed person will have to be reinstated, and even pay him the average for forced absenteeism, will greatly depend on the position of the judge himself.
For their own safety, not too suitable employees are trying to be dismissed for other reasons:
- agreement of the parties;
- own wish;
- disciplinary violations (if such have happened and are documented).
Failure during the trial period should not put an end to a career. This is just a special case, not a pattern. You can always regard this as an opportunity to gain additional experience. But so that the situation does not repeat itself again and again, you still need to agree on dismissal on more benign grounds. And of course, in the next place, make every effort to work for a longer period.
Bar lawyer legal protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.
A probationary or trial period is established by the management of the organization when signing an employment contract or agreement in order to bypass the acceptance of incompetent and dishonest personnel. It often happens that an employee who was hired with a trial period was not able to pass it. In this case, the dismissal of an intern who has not passed the probationary period is one of the complex functions that the management of this organization will have to perform. Currently, in order to remove an employee from a position that he occupies during the trial period, you need to know many nuances.
In order to correctly answer the question: “How to dismiss an employee who has not passed the probationary period?”, First of all, it is worth checking the documentary justification for this decision. You should check whether you signed directly upon admission to vacant position rookie such documents:
- the provision on the internal labor schedule, which should be in every organization and is developed, as a rule, on the basis of a model;
- job description, developed specifically for the workplace where the employee was accepted and approved by the management;
- local regulations that regulate the activities of the trainee at a particular place of work (instructions, orders, regulations);
- issued order for employment, with which he must have been familiarized with his signature.
The dismissal of an employee who has not passed the probationary period is regulated by Art. 71 of the Labor Code of the Russian Federation. In case the employer is not satisfied with the result of the employee's test, he may terminate the employment contract before the end of the test period. But the employer must notify the worker of the organization no later than three days in writing, setting out the reasons that became the reason for recognizing this worker as not having passed the test. The recruit has the right to challenge the employer's decision in court.
Official internship procedure
Many companies have a formal internship procedure. When concluding an employment contract, the future worker should be given a work plan for the entire duration of the probationary period, which should indicate (by days, weeks, months) what he should do, be able and know, as well as evaluation criteria. The employee writes a report on the work done by him, and according to the results of the internship, it is possible to conduct an official test with a protocol of results. However, if during the probationary period the management had certain doubts or claims about the result of the trainee's work or compliance with the work schedule, then these points should be recorded. And after that, at least three days before the end of the probationary period, you should talk to the employee, providing him with a "Notice of not passing the probationary period." The notice is given to the employee in the presence of 2 people.
- The employee does not want to be removed from office under Art. 71 of the Labor Code of the Russian Federation, and he can ask the employer to allow him to quit by writing an application for own will. If the employer agrees to this, then he must ensure that the application is written no later than three days before the expiration of the probationary period.
- If the trainee signs the notice, then after that he can go to court. Being on a trial period, on the last working day, the trainee takes the work book with the written mark of the dismissal article. And if the trainee still went to court, then all the documents that he signed when he was hired, as well as the reports that he wrote every week or excuses for not being able to complete any of the tasks, will be needed.
- There is such a situation when the trainee categorically refuses to accept the dismissal as having not passed the probationary period and does not want to sign the notice, and also does not agree to write a statement regarding the dismissal based on own initiative, i.e. at will. In this case, it is necessary to draw up an Act on the refusal of the dismissed person to sign, it must contain the signatures of all witnesses to this event. The employee (Legal or Human Resources) is required to mail the Notice to the trainee's home address (this letter must be with acknowledgment of receipt). In this letter, it is worth pointing out that, due to the fact that he saw the corresponding notice, but did not want to sign, an Act was drawn up to refuse to sign him, and he will be fired on the day that was the last when working on a probationary period. The letter should also contain an invitation to appear in personnel department enterprises or firms in order to pick up their work book. Personnel service the organization makes a dismissal order, the date of which is the last day of work of the dismissed employee during the probationary period.
The procedure for terminating an employment contract with a worker of an organization who has not passed the probationary period
There is the following procedure for dismissing an employee who has not passed the probationary period, which all law-abiding employers must comply with:
If there is no test, then there is no dismissal
It is possible to dismiss a worker due to an unsatisfactory test result only if, when hiring him, the employer announced this test by agreement with the recruit. The condition for this test must be indicated not only in the order for employment, but also in the employment agreement.
Many employers believe that it will be sufficient to fix the test term only in the order of employment, but this position is wrong. Because if the labor agreement does not specify the probationary condition, the worker of the organization will be considered hired without a probationary period and it will not be possible to dismiss him as someone who has not passed the probationary period.
The main argument in court is a properly executed notice
If, based on the results of the test, it is clear that the trainee is not suitable for the proposed position, then he must be informed of the impending removal from the position. The dismissal of an employee who has not passed the probationary period must be accompanied by a written notice.
The notice of termination of the contract during the trial period must contain the date, the outgoing number, the signature of the person authorized to certify such documents and the seal. In addition, the notice should write the reasons why the employee is going to be dismissed from his position (part 1 of article 71 of the Labor Code of the Russian Federation).
As modern practice testifies, the wording of the reason for the dismissal of an employee, as a general indication that he did not pass the probationary period, is almost always insufficient. The notice must list the main reasons for the dismissal of the employee. These can be such disciplinary offenses as: untimely completion of tasks, failure to comply with internal labor regulations, and others. Such reasons should not be indicated unsubstantiated, but based on the documents that must be drawn up during the probationary period, if such misconduct occurred.
So you should remember that you need to document any violations immediately, conduct the right disciplinary conversations. One or two explanatory notes can push the intern to a more conscientious attitude towards work and dismissal is not necessary. Or the recruit will make the balanced decision to “leave on his own.”
Dismissal on probation may be illegal 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 an existing entry in the 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 best option. 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, at illegal dismissal you can demand payment of the average wage 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 could be 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, employees who graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time entering work in the received specialty within one year from the date of graduation 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 organizations for 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. You can only cancel ahead of time by agreement of the parties. You yourself may not agree to a reduction in the probation 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 on other grounds 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, non-fulfillment job duties and 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 illegal condition about wages when they tell you that you will now receive 15 thousand, and after the trial period 30 thousand. True, depending on how you apply. If you are the only employee in this position, then the staffing and all. 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 made in writing against signature. 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.
When accepting a new employee, the employer does not know his business and personal qualities. The information indicated by candidates in their resumes when applying for a job is not always true, though.
It is to check the suitability of a person for a particular job and to simplify the dismissal of newly settled, but unskilled personnel Labor Code Russian Federation(hereinafter referred to as the Labor Code of the Russian Federation) introduced the legal institution of a probationary period.
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Probation
Concept definition
The Labor Code of the Russian Federation in Article 70 does not give a legal definition of the concept of a probationary period, however, it indicates the purpose of its introduction, namely, checking the compliance of a person with the work assigned to him.
The specified period does not provide any concessions and advantages to either the employee or the employer in the process of work.
However, he motivates the new employee for short term show all his merits and gives the organization time to consider it and decide whether such a person is needed in the enterprise.
Information about the availability of a period for testing in without fail must be present in the employment contract and only in it. An indication of it in internal documents enterprises, for example, in the order of acceptance, is negligible.
There is another tricky rule. The probationary period always precedes the actual performance of labor duties. So, you can’t allow a person to work and set a test for him in a week or formalize it with a separate agreement after signing an employment contract. Always first comes the establishment of a test and only then the execution of labor functions.
In addition, the test period is not rubber and its scope is clearly indicated in the same article of the Labor Code of the Russian Federation:
- No more than six months for managers, chief accountants and their deputies.
- Three months for ordinary workers.
- A different term for civil servants and other categories in accordance with separate federal laws.
For persons who have signed an employment contract for several months - from two to six - the maximum probationary period is two weeks.
If within the period allotted for the test, the employee falls ill, this stops his course, but is not the basis for a decision on his failure. The probationary period does not affect the duration or payment of the sick leave in any way.
Possible results
The test can be compared with a competition, which must be passed by a candidate who wants to enter the public service and here also, perhaps, only two outcomes: passed it or not.
If the employer has decided that the employee is suitable for his enterprise, then, in fact, he does not need to do anything. AT this case the law considers the organization's inaction to be an agreement that the employee has successfully passed the test. That is, if three days before the end of the probationary period, there was no notice of dismissal from the company's management, and the next day after its completion, the employee was allowed to work, then the test was passed, and the employee can continue his activities without additional paperwork.
When the employee himself did not like the position, he can, having warned the management in writing three days in advance, quit without any working off.
This is only possible within the period for which the test is established.
The employee, according to the employer, may fail the test. At the same time, it is the opinion of the management that is important, and not the trade union or the employee himself. In this case, the employee is not even paid severance pay.
Dismissal as not having passed the probationary period
The reasons
Today, almost all employers include a test in their employment contracts, as this guarantees him the opportunity to dismiss an unsuitable employee in a simplified manner.
Such a term does not give the employer other advantages.
The law indicates a very vague wording - an unsatisfactory test result. There are no clarifying criteria, so employers have to insure themselves and, upon dismissal from the probationary period, draw up documents confirming this.
The most common reasons include:
- Violation of labor discipline. This can be confirmed by acts of lateness, memos on non-fulfillment of tasks issued in writing by the immediate supervisor, acts on the release of marriage, complaints from citizens, an act on smoking in the wrong place.
- Failure to fit into the team. Often the real personal qualities of a new employee break the climate in an established team, destroy it. Such a conflict employee may be dismissed based on the characteristics of the manager, reviews of other employees of this department.
- Labor incompetence. Only in real work you can see the level of training and knowledge of a specialist, since today even a red diploma is not an indicator of literacy. It is one thing when a student with a small salary is hired, and quite another if it is a highly qualified Technical Specialist on which entire systems depend.
The best option for the employer is to create individual tasks for the test subject, both theoretical and practical, which he will hand over to the manager. Everything is similar to field trip at University. The result of their implementation is best displayed in acts, test control logs, and reports.
Notification
The employee must learn about his dismissal due to the failure of the test no later than three days before the issuance of the relevant order. A similar rule applies to employees who wish to quit during the probationary period.
Notification is always made in writing in two copies.
On the notice that remains with the employer, the employee must personally make a record of its receipt, indicate the date, time and put his signature with its transcript.
It is advisable to indicate in the document the reason for not passing the test with references to evidence (acts, complaints). This will save the employee's time and give the subject full information about why he will be fired.
The law provides for a scheme for the action of a responsible employee when a person refuses to receive a notification. Then the signature of two witnesses is required, stating that the employee (his full name) refused to receive this notification, then the date, time, signature, transcript indicating the position.
Entry in the work book
This is done three days after the notification is given. It must contain a reference to Article 71 of the Labor Code of the Russian Federation and contain the words "in connection with the unsatisfactory test result."
An internal document confirming the dismissal is also issued and registered in the ledger exactly three days after the employee receives the notice.
A book is issued only to the employee personally and after he leaves his signature in a specialized accounting book.
Calculation
The final calculation of the dismissed person who failed the test is made only on the day the order is issued.
It consists of unpaid wages for the time worked, sick leave payment, if any, and compensation if there is unused vacation.
Article 71 in part 2 imperatively establishes that the dismissal of an employee who has not passed the test is carried out without paying him a severance pay.
Who can't be fired?
The law contains a list for whom the legal institution of a trial period, in general, cannot be applied. Pregnant women and women who have a dependent child under the age of one and a half years are especially singled out.
Even if a test is specified in the employment contract of such women, this condition is void and does not give the employer any rights to their simplified dismissal.
AT this case less protected is the employer, since a woman, when applying for a job, can hide the fact of pregnancy or become pregnant during the test. From a legal point of view, it doesn't matter. It is impossible to fire a pregnant woman, even if she did not pass it.
The only option is possible if the pregnant woman has concluded a fixed-term contract with the employer. Only after the expiration of the contract itself, dismissal is possible.
There are difficulties with the second criterion - the presence of a minor dependent. So, during the period established by Art. 70 of the Labor Code of the Russian Federation, a woman can adopt a child under the age of one and a half years. Thus, she will automatically fall under the category of women who have a child under the age of 18 months, and even the probation period established before that will burn out. It will not be possible to dismiss her with the wording as having not passed the test, but only in the general order.
- minors;
- persons with whom an employment contract has been concluded for only two months;
- employees transferred to another employer by agreement with the previous one;
- a citizen elected by the people to a paid position;
- students who first came to work within a year from the date of receiving a diploma of secondary or higher education in accredited educational institutions;
- employees who, before getting a job, passed the relevant competition in accordance with the Labor Code of the Russian Federation or other regulatory legal acts.
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Controversial moments of the procedure and judicial practice
In vain, many employers believe that they should not motivate the dismissal of a person from a probationary period.
Often, the courts, without receiving any written evidence during the process, confirming the words of the organization, reinstate the employee. Although the Labor Code of the Russian Federation does not disclose the content of the test itself, leaving the development of its scheme to the employer, but it must be, moreover, in writing, indicating the responsible leader and with the obligatory compilation of its results, reports by the test subjects and the leader.
Only then will it be clear to the court what the employee had to do, how he did it and whether it was on time.
It is very important for the employer to have a document where the signature of the subject will confirm the issuance of tasks to him, and the date is indicated. So, the court will make sure that the employee knew about the nature of the test and its timing.
Highly common mistake managers is the admission of the employee to the performance of labor functions with the subsequent conclusion of the contract and the inclusion in it of the terms of the test. It's illegal. The company, having dismissed such an employee under Article 71 of the Labor Code of the Russian Federation, is guaranteed to reinstate him at work by a court decision and pay compensation. For the time sheets, the testimony of colleagues, the date of issue of the pass, or overalls will testify in favor of the employee.
The court will immediately take the side of the employee, according to the organization, who failed the test, if he was not familiarized with the signature before the start of its implementation with the main documents regulating the activities of the employee:
- With a work or official instruction, where his labor duty is clearly defined. A person must know what he is obliged to do in his work (position).
- With a document approving the rules of conduct within the organization. What time to come and go, when is lunch and a break, where you can smoke and eat. Only with the personal signature of the employee can he be punished for being late, lack of work clothes, and not undergoing sanitation.
- Specialized acts of the organization relating to his labor duties (safety regulations, maintenance of complex devices, carrying out certain types of work).
It will be a big mistake for employers to consider the probationary period as a kind of loophole for easy dismissal of an employee they don’t like, which, as in this case, you need to be able to correctly argue and prove your position if the one who has not passed the test goes to court. Otherwise, the company is guaranteed to lose the lawsuit, you will have to reinstate the person at work, pay him a rather large compensation. The test subjects, however, should be more serious about the assignments issued, because the presence in the work book of a record of dismissal with reference to Article 71 of the Labor Code of the Russian Federation is unattractive for other employers and can complicate the job search.