Expiration of the probationary period of the employment contract article. Illegal dismissal on probation

Can they be fired on probation, usually interests 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 may be its reasons.

What does the Labor Code of the Russian Federation say about the possibility of dismissal on a probationary period

The Labor Code of the Russian Federation gives the employer the right to arrange a test for the 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. When asked 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 probation is not established at all, that is, their dismissal on grounds related to the results of the probationary period is simply impossible.

For which you can be dismissed on probation (the main reasons for dismissal)

Grounds for dismissal on probation 2:

1. The desire of the employee himself.
2. The decision of the management if there are 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 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 why such a decision was made. This provision was introduced to the Labor Code in connection with the increasing cases of abuse by employers of their right to dismiss during the trial.

The reason for the termination of the employment contract may be a disciplinary violation. For this, it must be recorded in the presence of witnesses and described in the corresponding act. Moreover, the guilt of this particular employee must be proven. A written explanation of the employee on this matter is also required.

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

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

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

How can you fire an employee on probation?

The process of dismissing 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 work, terminate the employment relationship with the employer. Registration will take place in the same order as upon dismissal of your own free will:

1. A statement is written and the manager is informed about the intention to terminate the employment contract.
2. 3 days are worked out.
3. A dismissal order is being drawn up.
4. A work book is issued, settlement payments are made. Also, other documents relating to the employee's work activities should be issued (upon his written request): copies of orders for appointment, dismissal, etc.

Normative acts do not define a sample of an employee's application for dismissal on a probationary period, therefore it is left in free form.

The situation with dismissal by the decision of the employer is somewhat more complicated. 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 customers, colleagues, acts of fixing disciplinary violations, written characteristics of the employee's immediate supervisor, documents confirming insufficient qualifications. All these documents can act as evidence of the legality of the employer's position if the employee subsequently decides to appeal against his dismissal. Then a dismissal order is drawn up, 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 the 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 cannot be fired on probation

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

• working under a fixed-term contract with a duration of 2 months or less;
• transferred between organizations as agreed by managers;
• who have taken a paid elective position;
• minors;
• mothers of children under one and a half years of age;
• pregnant women;
• who received a position by competition;
• those who first got a job after receiving higher or secondary vocational education in programs that have state accreditation (young specialists).

Note: the latter benefit is valid for 1 year from the date of receiving a diploma of education.

In this case, Part 5 of the same standard 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 increases to six months, was made:

• for heads of organizations;
• deputy heads of the organization;
• chief accountants;
• deputy chief accountants;
• heads of departments 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 about the dismissal based on the test results during this period, he is considered to have passed the test - which means that he cannot be dismissed due to the unsatisfactory results.

About registration of the probationary period

It is impossible not to mention such an important point as the correctness of the registration of the condition 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 must read, sign and receive a copy of the employment contract in which these provisions are spelled out.

Often, the employer introduces 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 fire him based on the test results, just as he himself has no right to resign 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 that and their clear recording.

The employer has the right to accept personnel by setting a probationary period for him. it is needed to understand whether a person will cope with duties or not. In the current material, we will consider how to correctly conduct dismissal on probation.

Quite often, the choice of a suitable employee for the organization turns out to be a procedure that takes a huge amount of time for the employer. But even careful selection does not in any way exclude the occurrence of risks for the direct employer associated with the insufficient qualifications of the selected employee.

To determine how the selected employee meets all the requirements provided for in the company, it is necessary to establish a trial period. A certain period of time is established in the organization in order to assess all the capabilities of the hired employee.

In the event of any problems, the parties can terminate their relationship if the results of the work are unsatisfactory. A different length of the prescribed period for passing the test is established.

Based on certain conditions, the employer can independently choose which trial period to establish for his new employee:

1. The total period of time for checking the suitability of the employee's qualities for performing the functions is 3 months.
2. The heads of the organization, as well as their deputies, accountants and heads of branches, are set a period of six months for the audit.

The total duration of the period provided for in this organization for passing the necessary test is established by agreement of both parties, but such a period should not exceed the mark established by the Labor Code currently in force in the country.

Who Cannot Establish a Probationary Period

1. Individuals selected through a competition to fill a specific position.
2. Pregnant women and women raising alone a child who has not reached the age of one and a half years.
3. Minors.
4. Persons who graduated from an educational institution of any level, having the necessary accreditation issued by an authorized state body. At the same time, they must first go to work within a full year from the date of the immediate completion of their studies.
5. Persons elected in accordance with the established procedure for an elective position.
6. Persons invited to perform their functions in the order of transfer from their previous immediate superior in agreement with the new.
7. Persons who have entered into a fixed-term contract, the total duration of which does not exceed a full 2 ​​months. If the employer has set a certain time limit for passing the required test for the person indicated in the above list, such a document will have absolutely no legal force.

Pregnant

It is no secret that pregnancy does not add value to a specialist. And, if we are talking about a new employee, then the rounded tummy stimulates the employer only one desire - to find a convenient reason to refuse a job, so that formally it is not connected with the interesting position of the applicant. Everything changes dramatically if the future motherhood became known after the signing of the contract.

As soon as the certificate of pregnancy was placed on the manager's desk, dismissal during probation becomes technically impossible. First, the establishment of a test for pregnant women is prohibited by Art. 70 of the Labor Code of the Russian Federation, and secondly, the dismissal of female employees in the position is categorically discouraged by Article 261 of the Labor Code of the Russian Federation.

The only correct way in such a situation is to issue an order on the early termination of the probationary period in connection with pregnancy and, if possible, calmly wait for the onset of maternity leave. Pushing a woman to calculate of her own accord is also strictly prohibited.

Regardless of whether the woman was pregnant during employment or found herself in an "interesting" position afterwards, it is impossible to fire her because she failed the test. An employer may knowingly make working conditions more difficult, which is considered illegal. As soon as a woman brings a pregnancy certificate, she should not only be employed on a permanent basis, but also create optimal working conditions that do not pose a risk to the unborn child.

Retiree

The experience accumulated over many years of work should help the pensioner to overcome the probationary period with brilliance and cope with all the tasks. And this is the only advantage that an “age” specialist has, because the code does not provide for another additional measure of protection for such employees.

But there is a slight advantage in terminating an employment relationship. The retirement age provides a compelling argument for immediate dismissal without prior notice. It is enough just to mention in the statement that the employee intends to go on a well-deserved rest, and the order for settlement should be ready on the same day. At the same time, the legislation does not contain a prohibition for a pensioner to find a new place for himself even the very next day after his dismissal.

In decree

In the classic version, after the birth of the child, the mother seeks to stay on maternity leave as long as possible, using all periods that are permissible in this sense. The Labor Code allows a woman to calmly care for a baby up to three years old and know that all this time her position will be retained for her, Art. 256 of the Labor Code of the Russian Federation.

But there are also emergencies when a young mother has to look for a job, having a baby in her arms. An employer who accepts such a lady to his team needs to remember that a probationary period for her can only be established if her child is already one and a half years old. If even a few days are not enough before 18 months, then you will have to take a woman immediately to the state and forget about dismissal at the initiative of the employer for some time.

In addition, you need to understand that an employee with a small child in her arms has the right to receive parental leave on any day before the baby turns three years old. Whether a woman worked in this company before giving birth will no longer matter.

Reasons for dismissal on probation

If an employee on probation decides to quit, there can be any reason for this. Moreover, it does not even need to be indicated in the letter of resignation, it will be enough just to write "of your own free will." At the same time, you can terminate the employment contract during the probationary period at any convenient moment. At the same time, the employer can also fire their employee. But at the same time, he must have quite serious reasons for this. Otherwise, such a decision may be challenged in court and a rather serious fine will have to be paid. The grounds for dismissal on probation may be:

• truancy;
• unprofessional behavior;
• non-observance of labor discipline.

In this case, it is necessary to have documentary evidence of the above points. The situation is similar with the failure to pass the probationary period. The employer is obliged to prove the incompetence of his employee and inadequacy for the position held.

Common moments of dismissal during trial

If the trial period has expired during the periods when the employee is on sick leave or on vacation, then upon returning to work, the trial period for the new employee must be extended for the period during which he was actually absent from work (part 7 of Article 70 of the Labor Code of the Russian Federation).

Downsizing: how to fire an employee who has not passed the probationary period

Reduction of the current staff is a rather laborious process with appropriate nuances. The main thing to do is to notify employees 2 months in advance of the upcoming layoff. A negligent employer may try to remove an employee during the trial period, appealing for staff redundancy, without due payments. But this is not possible for a number of reasons.

First, the layoff process itself takes a lot of time, since you need to prepare a layoff order, notify employees of the event and offer them another job, notify the trade union and the employment service.

Secondly, without notification (received and signed) two months in advance, the manager does not have the authority to fire employees, especially those undergoing testing.

In addition, when reducing staff, the manager must know that if the choice is between several employees, then you cannot fire:

• pregnant or on maternity leave;
• a more highly qualified employee (in the event that this indicator is equal for both employees, the one who has two or more children to support, who received an industrial injury at one time or undergoes certification without interrupting the work process does not decrease).

Dismissal of an employee who has not passed the probationary period - a part-time job

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

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

If the employer can offer a part-time job, which he is engaged in 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 does not suit the employee and he refused the employer's offer, then the part-time job is subject to dismissal. On the basis of the considered written application, the employer issues an order (order) to dismiss the employee with the execution of the documents listed above.

Employer's liability for unlawful dismissal

If, during the inspection of the company by the supervisory authority or upon the application of the dismissed to the labor inspectorate, the unlawfulness of the dismissal of the worker under this article is established, then the employer will have to restore the dismissed to his original place, pay for the forced absenteeism (from the moment of dismissal to the day of restoration), and also, if necessary, compensate for moral damage suffered by the victim.

In addition to the above, the employer will bear administrative responsibility.

Article 5.27 of the RF Code of Administrative Offenses provides for the following penalties for 2016:

Possible employer mistakes

1. Oral employment contract, postponement of registration. If the employee began to perform his duties with the knowledge of the employer, then a formal agreement with a clause on the availability of a probationary period must be concluded no later than 3 days. If this is not done, then formally the employee is considered hired without passing the test and he can only be fired as usual.
   

   An agreement on a probationary period is allowed for registration prior to drawing up an employment contract, and then it is legal to include a clause about it in this document later.

2. Unreasonable reasons for dismissal. When dismissing an employee on its own initiative, the employer must state the reasons in writing. If the employee does not agree with them, the owner must be ready to provide documentary evidence.
3. Insufficient awareness of the employee. Challenging termination of an employment contract during a probationary period, a negligent employee may refer to ignorance of his duties and the accepted rules. Therefore, it should become a general rule, before employment, to acquaint the applicant, on receipt, with the rules of procedure, job descriptions, and safety requirements.
4. Violation of original agreements. The employer does not have the right to unexpectedly change the conditions specified in the employment contract (the size of the salary, the time of passing the test, its conditions, etc.).
   

   It is necessary to monitor the correctness of the wording in the required documents. So, the agreement on the verification period is valid only when entered into the employment contract. In addition, the combination of "probationary period" is generally accepted, however, the term "assignment of the test" is enshrined in legislative acts, and its change can be qualified as an infringement of the employee's rights.

5. Compliance with the procedure for dismissal. The notice of dismissal must be signed by the employee who was familiarized with it in time, and if he refuses, a special document is drawn up - an act certified by two witnesses.

So, in order to properly part with an unsuccessful applicant for work during or after the end of the probationary period, you need to closely monitor compliance with the formal aspects of labor legislation.

The nuances of dismissal on probation

There are several nuances that both the employee and the employer should know.

If the trial period was not enough to assess the employee's ability

Then, by agreement with the employee, the probationary period can be increased by one more month. True, the officials of Rostrud in the Letter dated 02.03.2011 No. 520-6-1 argue that the possibility of extending the probationary period by amending the employment contract is not provided for by the labor legislation of the Russian Federation. Their opinion on this issue is the only one, since there is no other explanation, it is up to the employer to adhere 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. In the Letter No. 1329-6-1 dated 05/17/2011, it was concluded that, upon mutual agreement, the parties have the right to conclude an additional agreement to the employment contract to shorten the trial period. These changes will not contradict labor laws.

Production breaks

The verification period does not include days when the work of the entire enterprise was stopped for various reasons - technological, economic, or as a result of force majeure factors. After the resumption of work, the trial period will continue, even if its time has expired during the idle period.

Outcomes

If an employee has not passed the probationary period, every employer should know how to fire him without breaking the law. There may be slightly more grounds for dismissal on a probationary period than in the case of a regular termination of a full-time employee's contract on the initiative of the employer. In this case, the amount of payments may be less. The employee also has the right to quit if the new place and working conditions do not suit him, without going through compulsory work for a period of 2 weeks.

However, do not forget about the length of the probationary period, after which you will have to terminate the employment contract on a general basis.

Probationary employment is a common practice that creates a comfortable environment for assessing the applicant's abilities. The employee, in turn, has the opportunity to inspect the new place and understand whether the position in this company is suitable for him. The verification period is distinguished by a simplified dismissal procedure, without unnecessary formalities and lengthy work. 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 a probationary period introduced?

Employees are hired based on their resume and successful interview. Nevertheless, the quality of his work cannot be judged by only having the information provided. The new employee may not be able to fulfill the responsibilities assigned to him. To test the competence of employees, TC (Russia) provides for the existence of a probationary period - a period during which the management can assess the employee's skills, and he can decide whether it is worth staying 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 of the employment agreement.

How long does the verification phase take?

The length 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 a high level of qualifications - management personnel. It can be up to six months old.

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 who for the first time want to get a position in their specialty no later than a year after the acquisition of the corresponding 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 increased. If it is concluded for a short period (from two months to six), the verification period cannot exceed 2 weeks.

Unregistered workers

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

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. Thus, they can take sick leave. Dismissal of an employee on a probationary period during 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 due to the days during which the employee was not present at the workplace. This rule is optional and only applies if the manager wishes.

The employees also have the opportunity to take a vacation. However, employees can only take full-time rest after six months of work. Therefore, during the probationary period, they have the right to take on vacation only a few days, 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 is suitable for him. The duration of the test stage is sufficient to make sure whether the person copes with the responsibilities 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 on the initiative of an employee on a probationary period is made 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 obliged to justify his dismissal.

Paperwork

To leave of your own free will, you must submit a Probationary period, and this does not have to be nearing the end. The document is drawn up in any form. When filling out the application, you must indicate the name of the employer, the leaving employee, the date of writing and the alleged departure (no earlier than three days after the submission of the paper). The reason for leaving can be any - 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 with compelling reasons, confirm with evidence that the employee is not able to cope with his duties. If the employee does not agree with the employer's decision, he can appeal in court and be reinstated in his position. If a person does not want to return to work, he has the right to demand in court a change in the reason for dismissal, as this may negatively 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 the contract

If the dismissal on the initiative of the employee on the probationary period, as already indicated, does not require convincing justifications, then the termination of the employment contract at the request of the employer is motivated by a specific reason. Good reasons can be:

• one or more absenteeism;
• non-compliance with the rules that should be known to the employee, specified in the law or corporate regulations;
• evasion of duties after received disciplinary punishment, etc.

The rationale for dismissal during the screening period is the same as 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 contract and the Labor Code of the Russian Federation). Dismissal can be justified by any of the above reasons. A broader list can be found in Russian legislation.

Termination procedure at the verification stage

Termination of an employment agreement at the initiative of the employer requires careful paperwork. First, you need to formulate the reasons for dismissal and check whether they are sound, 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 reasons for terminating the employment agreement must be indicated in the notice and registered in the journal. Then the document is handed over to the employee three days before the dismissal or the end of the probationary period. On the date specified in the notification, the employer must sign the appropriate order, register it in the journal and receive the signature of the employee.

Calculation of severance

After issuing the order, the employer must pay the person the entire required amount. Dismissal on the initiative of an employee on 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 an ongoing basis. This amount includes:

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

Every employee is entitled to 28 days of vacation per year. However, the termination of the probationary period occurs before the employee is eligible for full rest. In this case, compensation is calculated in proportion to the period of his work. If the company provides for more days of rest, they are taken into account when calculating compensation. For one unused day of vacation, a former employee receives an amount equal to his daily salary. The calculation is carried out 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 of unused vacation (28: 12 * 3).

Testing

Upon termination of the contract, an ordinary employee must perform his duties for two weeks, if requested by the employer. During this time, he can find another person for the vacated position. The duration of the additional work is different if there is a probationary dismissal. In this case, working off lasts 3 days.

This principle applies when the employment contract is terminated during the verification period. If the termination of the contract on the initiative of the management or an employee occurs at the end of the probationary period, work is optional.

A person can refuse additional days if 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 stationary studies;
• retiring, etc.

If a person does not declare a desire to quit at the end of the probationary period and the next day he goes to work, 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 duration of two weeks.

Employment history

This is the final step in the termination of the contract, which occurs after the order is issued and the employee receives the required payments. Dismissal during the probationary period ends accordingly It must include the reason for the dismissal. If this occurs on the initiative of the employer, then the "unsatisfactory test result" is indicated as a justification. If the employee decided to leave the organization, then the reason can be indicated by his own desire. A photocopy of the work book must remain with the company in which the employee worked.

Now many employers want to hire employees only on the condition of a test. Thus, they plan to protect themselves from unscrupulous employees. True, many mistakenly believe that a probationary dismissal is much easier: all you need to do is write an order and point the person at the door.

How to write a test condition?

We would like to note that the condition on the appointment of a term for the "strength test" 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 should talk about this with the applicant in advance, and not after signing the employment contract. However, many managers simply offer the applicant to familiarize himself with and sign his autograph in a pre-prepared standard form of an employment contract with the conditions already indicated. Thus, the test condition becomes mandatory for the applicant. This means that dismissal during the probationary period is quite possible. If so, you have the right to disagree with such terms.

Some restrictions

Labor legislation establishes that a test for hiring cannot be established for a certain list of persons:

• Pregnant women and women who have a child under 15 years of age.
• Citizens who were selected 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 by transfer from another employer.
• Applicants who enter into an employment contract for up to 2 months.

Remember, even if, for example, a pregnant woman or a seasonal worker agrees to establish a trial, then such a clause will not have legal meaning, and it will be impossible to dismiss as not passed the trial period. 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.

Employee registration

If a person is hired with a trial, he must write a statement where he indicates that he agrees with the establishment of the trial period. If nothing is said about this in the employment contract, then such a condition cannot be specified “retroactively”. The criterion for passing the test can be the result of a specific job or, for example, the quality of performance of job 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 the clause on checking for the suitability of the position can be included in the employment contract only on the condition that the parties have agreed on this before starting work. Only if all these stages are executed correctly, in the future it will be possible to make a dismissal on a probationary period.

Timing of verification

Apart from 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 probation for 6 months. But if an employment contract is concluded for a period of 2 to 6 months, then a person can be checked for professional suitability only for 2 weeks.

Obligations of the test subject

This employee should have the same rights and responsibilities as other employees. He should not be infringed on any authority. A feature of this status is only that you can make a dismissal on a probationary period, and even then under certain circumstances.

There can be no salary reductions in comparison with other employees, unjustified deprivations of bonuses and other payments that are stipulated by the collective agreement, the provision on the payment of salaries. 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 work, weekends and 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 catastrophes, floods or other natural disasters, etc.) and for payment.

Test result

After the expiration of the verification period for compliance with the position, there can be two options for the development of events: either the employee passed it successfully, or he could not stand it. If the bosses decide to leave the employee, then no additional registrations will be required. If the person did 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.

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

Be very careful about the start and end dates of the trial period, as well as the prepositions that you use. For example, specifying that the trial period is set from February 15 to May 15, you will not be able to dismiss 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 fire an employee on that day.

Prolongation of the term

It is worth noting that if during this period the employee is absent from work (illness, study leave, unpaid leave, etc.), the probationary period must be extended. That is, this period of time includes only the period when the employee actually performed his duties. 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 be less absent from work and perform his duties well and within the agreed time frame.

Dismissal procedure

The manager has the authority to fire an employee on probation at any time. But employers often abuse this opportunity. There are cases when organizations recruited workers, set a three-month period to check their professional suitability, paid a small salary, and then at the end of the trial period, they were fired, allegedly due to inadequacy of the position. However, the chief's desire 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 did it poorly. It can be such papers:

Termination notice

Dismissal of an employee on a probationary period cannot be carried out without explaining the reasons. 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 of this.

Dismissal on your own initiative

The employee also has the opportunity to terminate the employment contract during the probationary period. Therefore, the subordinate can initiate dismissal during the probationary period. In this case, working off for him will not be two weeks, but only three days. At the same time, the employer cannot interfere with the dismissal of the employee and is obliged to timely pay him all the money earned. 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 to clearly explain 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 is poorly organized, write memoranda to the employer, you can also enlist the support of witnesses.

Characterizing you as a good employee who copes with his duties may be the absence of reprimands, remarks, or the accrual of bonuses. An additional advantage can be information about awards, diplomas from the 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 your boss fired you completely unreasonably, then the court will reinstate you in your previous position. In addition, if you are fired while on study leave or sick leave, it would be a violation of labor laws.

At the same time, if you come to the conclusion that this job is not suitable for you, write a letter of resignation. The probationary period provides for a shortened working period - 3 days.

Notes to the employer

There are not so few cases when workers were restored by the court. Therefore, before you indicate to the employee on the probationary period at the door, it is necessary to carry out such an algorithm of actions.

1. The notice of dismissal is sent three days before the proposed dismissal. This document indicates the reason for the decision. These can be: poorly performed work, systematic failure to fulfill their duties, inability to invest in the deadlines for completing the assigned tasks, etc. Please note that if the subordinate refused to sign in the notification, an act of his 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 moral damage.
2. Another reason when dismissal is possible is your own desire. The probationary period implies that the employee only needs to work three days, and not 14, as provided for everyone else.
3. An order 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 the subordinates. The employee must familiarize himself with the order against signature.
4. On the day of dismissal, payment is made to the employee in full (including unused vacation, sick leave, etc.).
5. On the last day of work, the employee is issued a work book with a note of dismissal. For its receipt, the employee also puts a signature.

conclusions

We found out that a trial period contains quite a lot of nuances. Dismissal of your own free will or at the initiative of the employer during the trial period is possible, but you must strictly comply with the requirements of the law. Ignoring the deadlines, the absence of a reason for terminating the employment contract can serve as a basis for reinstating an employee in his position. And with such a development of events, the enterprise will have to pay its wages from the day of dismissal to the date of the court decision, re-hire and pay a certain amount of material compensation. This is why it is so important to adhere to all legal requirements.

Dismissal is possible both at the initiative of the employer and at the initiative of the employee.

The employer has the right to establish a probationary period for the applicant when hiring. The provision on the availability of the test must be specified in the employment contract.
The probationary period cannot exceed 3 months, and for some categories of workers - 6 months.

The probationary period is established in order for both the employee and the employer to "take a closer look" at each other. The employer must assess the level of professionalism of the applicant, and the employee must understand the specifics of the job.

During the probationary period, the employee may realize that the given job is not suitable for him. He can resign by writing a statement of his own free will 3 calendar days before the date of dismissal. If the parties agree among themselves, then you can resign the next day.

The employer does not have the right to prevent the dismissal of an employee on a probationary period. The application is written in accordance with the rules of the Labor Code of the Russian Federation. The employer must pay the leaving employee wages and compensation for several days of unused vacation. If an employment or collective agreement provides for severance pay, then the employer must pay it as well.

If the employee has not passed the test, the employer has the right to terminate the employment contract with him on this basis. This is stated in Art. 71 of the Labor Code of the Russian Federation. Dismissal on the initiative of the employer on a probationary period must be properly formalized. Otherwise, the employee can challenge such dismissal in court, recover at work, demand compensation from the employer for forced absenteeism, as well as moral and material harm.

If the employee has not passed the probationary period. Then the employer can dismiss him at any time, giving 3 calendar days in advance. Unsatisfactory test results should be reported accordingly.

The employer must draw up an act, which will describe the violations that the employee made during the probationary period. The employee must familiarize himself with these results against signature.

The notice must be in writing. It must indicate the reasons for dismissal on probation at the initiative of the employer.

The employer is not required to notify the union body or pay such employee severance pay. In the Labor Code of the Russian Federation there are no direct instructions on this.

In addition to the negative test results, any of the grounds specified in Art. 81 of the Labor Code of the Russian Federation.

The trial period begins on the first working day. In accordance with Art. 68 of the Labor Code of the Russian Federation, the employer is obliged to familiarize the employee against signature with the internal regulations and labor discipline.
Violation of these rules, as well as discipline, is a valid reason for terminating the employment relationship during the probationary period.

In addition to discipline violations, the employer can dismiss an employee on a probationary period.:

• with staff reductions;
• upon liquidation of an enterprise;
• when transferring this employee to another employer by agreement between these employers;
• when the owner of the enterprise changes and the employee refuses to work with this owner;
• if the employee refuses to move to another locality together with the employer;
• the employee's refusal to continue his labor activity if the employer changed the terms of the employment contract unilaterally in accordance with the Labor Code of the Russian Federation;
• other grounds listed in Art. 81 of the Labor Code of the Russian Federation.

Any violation must be duly documented:

• it must be recorded in the presence of several witnesses;
• the guilt of this particular employee must be proven;
• the employer must demand written explanations from the employee;
• an act must be drawn up and a dismissal order issued;
• the employee must familiarize himself with the order;
• the employer is obliged to make all payments to the employee, which are provided for by the Labor Code of the Russian Federation.

This dismissal procedure also applies to employees who are on probation.