Dismiss under the article on probation. Dismissal on the initiative of an employee on a probationary period
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An employment contract concluded with an employee may contain a condition on a probationary period. Such a clause of the contract is included by the employer only with the consent of the employee himself. The probationary period when hiring gives both parties the opportunity to study each other, and if something does not suit them during the employment relationship, leave according to a simplified procedure.
The main norms defining the probationary period and its duration are enshrined in the Labor Code of the Russian Federation. According to them, the test can be established from two weeks to three months.
Management positions, which include the director, his deputy, chief accountant, etc., may be set for a period of up to six months.
For employees of state bodies and the municipality, in accordance with regulatory enactments, the duration of the test can be one year.
When a contract is signed for up to six months or for temporary work, the test period is fourteen days, and for a contract with a validity period of up to 2 months, it should be absent altogether.
Important! The legislation prohibits the provision in labor contracts of a condition on probation for employees under 18 years of age, pregnant women, employees with young children, specialists who have just graduated from educational institutions, people who are admitted by competition or by election, as well as employees who enter the company on a preliminary basis. a proposal by a transfer from another company.
Dismissal on probation at the initiative of the employer
During the probationary period, supervision is established for a new employee, all his work results are recorded in special reports, on the basis of which a decision is subsequently made on professional suitability for this position.
If, during the implementation of his job duties, the subject makes many mistakes, does not fulfill the plans, etc., the responsible employee draws up official and service notes, acts of offenses and rejections.
Attention! The dismissal of the person who has not passed the probationary period must be documented, otherwise the resigned employee will be able to reinstate himself in his place through the court, and the termination of the contract will be invalidated.
In this regard, when hiring a new employee, you need to hand over his job description, in which it is desirable to describe in detail all his rights and obligations, as well as familiarize him with the internal local acts at the enterprise.
According to the current legislation, the management of the company has the right to dismiss this employee by notifying him in writing three days before the expected date of termination of the contract. The administration of an economic entity can terminate the contract without waiting for the expiration date. But she must still comply correctly with the notice within a three-day period.
The employee must sign the notification, otherwise the company's management draws up an act of refusal in the presence of the commission.
Leaving employees may try to negotiate with their supervisor that the dismissal takes place as usual, and not as a failed test, as this record creates a not very favorable opinion of the employee among the future management.
Dismissal on probation at the initiative of the employee
The probationary period for an employee also provides an opportunity to take a closer look at his manager, place of work, conditions, functions, team, etc.
If something does not suit him, then this person has the right to issue a dismissal of his own free will on a probationary period in a simplified manner. It lies in the fact that, unlike the usual termination of the contract, here he needs to warn the management of his intention three days in advance.
Also, the employee may not wait for the termination of the trial period, and submit an application ahead of schedule, while only complying with the notification period.
The employee must understand that if he submits after the end of the probationary period, then the termination will take place in the usual manner, which provides for working within fourteen days. Further, the dismissal procedure occurs by analogy with a simple one.
Dismissal instructions
Registration of supporting documents
This is the most important step in firing a failed test. This step must be documented, since you cannot be dismissed on the basis of the wording “did not work well”. Everything must be documented.
It is best if a work plan is drawn up for the employee undergoing the test, including the responsibilities from the job description. For the completion of each task, the employee will be required to report. In the event that the task is not done or is not fully completed, it is imperative to demand from him an explanation of the reasons.
In addition, supporting documents can also be:
- the head of the failure to perform work;
- Marriage acts;
- Bad testimonial from the head;
- Written complaints from customers.
Also, the company's internal regulations may provide for the creation of a commission to summarize the results of its work. She can accept the conclusion about the unsatisfactory performance of the employee of his duties.
Drawing up and serving a notice of dismissal
An employee who is on probation can be dismissed only after he has been warned about it three days in advance. This warning should not be given orally, but in writing.
The notice is usually drawn up on letterhead in two copies. There is no established form, but it should include the following:
- The name of the company and its details;
- Number and date of notification;
- FULL NAME. employee, details of his labor agreement;
- Dismissal message and a list of reasons;
- Date of dismissal.
The document must contain a column in which the employee is obliged to put the date and signature as confirmation of familiarization with it. There are times when an employee refuses to do this. Then a commission is created, which includes the people who were present at the refusal, and an act about this is drawn up. The latter, after signing, is attached to the notification.
All reasons for dismissal must necessarily contain brief information about the misconduct or unfulfilled order, as well as the details of the document (number, date of issue) confirming this.
Execution of an order for dismissal
After signing the notice (or drawing up a waiver certificate), it is sent to the personnel department, which writes. To do this, use a standard form in the T-8 form (or T-8a, when a group of people leaves immediately).
Filling in its main columns is done in the same way as when you leave at your own request. However, there are also a few differences. So, the column "Grounds for termination of the employment contract" must contain a reference to Art. 71 of the Labor Code of the Russian Federation. And in the line "Basis" you need to write down the data of supporting documents - reports, acts, etc.
As in other cases, the employee must be familiar with the document. As a confirmation, he puts his signature in the prescribed place. However, in this case, he may refuse to do so. Then it is necessary to gather the commission again and draw up another act - on the refusal to sign the order.
The document must be registered in the prescribed manner in the order registration book.
Making an entry in the work book
The next step is an employee of the personnel service enters the necessary entry in the work book. In it, it is imperative to make a reference to the article in the Labor Code of the Russian Federation, and also inform the reason for the dismissal. For example: “Fired due to an unsatisfactory test result, Part 1 of Art. 71 of the Labor Code of the Russian Federation ".
Then the personnel officer puts his signature and seal. After that, the employee must put his signature as a sign of familiarization.
The final stage in the accounting log for the issuance of work books, the employee signs in to receive it.
Sometimes there are cases when a dismissed employee refuses to come to receive a book. In order for the company not to have any problems about this, it is necessary to send a written message with a return receipt, in which the company asks to come to receive the book or to provide its consent to send it by mail.
Payment of funds
All amounts are paid on the last business day. This can be done both in cash and to a current account, bank card.
No additional compensation is paid upon termination of employment after the probationary period.
Attention! If the dismissed person does not appear at work, and it is not possible to make a transfer to his bank account, then all the amounts due are kept at the enterprise and must be issued upon request.
To what extent is the probationary period fertile soil to get rid of an employee or to part with companies yourself? Let's analyze all the wisdom of the mechanism probationary layoffs: rights, obligations and guarantees for each party.
Convenient moment
On the other hand, the employee himself may decide for himself that he still does not want to work in this company. And then he has the right to write a statement asking for dismissal on probation at the initiative of the employee... The authorities will have no reason to deny this request.
Convenience lies in the fact that dismissal during probation passes according to a somewhat simplified scheme. And this rule applies both in the first and in the second case. Although, of course, it is more in the hands of the employer. He has less paperwork if the applicant does not pass the test.
As a rule, potential employees themselves are much less likely to be disappointed in working conditions and apply for dismissal.
Test period
Details about the probationary period are written in Articles 70 - 71 of the Labor Code of the Russian Federation. They clearly define the procedure for assigning this test, the maximum period and rules for documenting.
The trial period has two main functions. During his time:
- the employer can assess the professional qualities of the applicant, his diligence and suitability for the position for which he expects;
- the subordinate can get to know more about the internal regulations of the company, find out all the nuances of the work and decide whether the proposed vacancy meets his expectations.
If one of these points is not fulfilled, and may follow dismissal during probation... On the initiative of one side or the other.
The most important thing to know about the probationary period is that it has a clearly defined upper bound on the duration. So, the maximum period of time during which an employer can test an employee is six months. And then, this applies only to a narrow category of applicants who want to take one of the leading positions in the organization. For example, if we are talking about the vacancy of a deputy head of a company, head of a structural unit, director of a representative office or branch.
In all other cases, for ordinary employees, the maximum probation period cannot exceed three months. And not a single boss has the right to exceed this period, since by his actions he will then automatically violate the law.
At the same time, the Labor Code does not specify a minimum probationary period. That is, it may not exist at all, or it will last a week. In this case, each company establishes its own procedure, which is regulated by internal documents.
Moreover, a test with a check can end at any time, even if the specified time has not passed. This happens, as a rule, if the management sees that the new employee is doing an excellent job and is suitable for the position. By interrupting the trial period, the management makes it clear to the employee that he is on the right track. And at the same time and additionally motivates him for further work.
Thus, even if the probationary period was assigned at the maximum level, that is, 3 and 6 months, it can easily end in a week. It all depends on specific cases and specific people - the employee and the boss.
But if the test time came to an end, the authorities did not make any complaints and there is no question about dismiss after probation, then the test is considered automatically passed by the employee. And in relation to him, the general rules of the company begin to apply, which apply to the entire old team. The management will not be able to dismiss him according to a simplified scheme.
At the request of the authorities
If, according to the results of the audit, for some reason, the manager remains dissatisfied with the new employee, then he will have nothing left, how to fire an employee on probation... But he must do this in strict accordance with the law. The main rules are spelled out in the first part of Art. 71 of the Labor Code of the Russian Federation.
When the desire of the bosses is illegal
There are a number of other cases where a decision to dismiss during a trial would be illegal. For example, the rules prohibit doing this in relation to pregnant women, which is spelled out in the first part of Article 261 of the Labor Code of the Russian Federation.
But for single mothers raising children aged 1.5 years and above, this rule does not apply. To the question, can they be fired on probation, in their case, unfortunately, the answer is yes.
And one more interesting nuance, when the boss cannot fire a subordinate due to not passing the test: if the trial period is not spelled out in the contract when hiring. That is, in fact, this means that the employee is enrolled on a general basis without a probationary period. Then the same rules apply to him as to everyone else. This is enshrined in Art. 70 of the Labor Code of the Russian Federation.
A warning
As already mentioned above, to the question, has the right to dismiss during the probationary period boss, the answer is yes, it does. But observing the rules of the Labor Code of the Russian Federation. And first of all, by notifying the employee of his decision in writing no later than three days before the date of the planned dismissal.
For example, a similar notification might look like this:
If happened dismissal on probation under contract, then the calculation with the employee is done according to the following rules. According to Art. 140 of the Labor Code of the Russian Federation, all the money that management must pay to a person is charged on the day of his dismissal. Remember: not on the day when all employees throw their salaries, but on the day of dismissal!
On the other hand, you are entitled to dismiss on probation at the initiative of the employer and not pay severance pay. Here the law is on the side of the organization, which is spelled out in Art. 71 and 178 of the Labor Code of the Russian Federation.
At the request of the employee
The trial period gives the employee the opportunity to take a closer look at the new place, learn in more detail all the nuances and internal routines. And as a result, a person decides for himself whether this place suits him or not. If the first option, then at the end of the test, he continues to work in the company on a general basis. Of course, if at the same time there were no complaints from the leadership.
In the second case, she has the right to take such a step as dismissal "on their own" during the probationary period... But this does not mean that one fine day the employee simply does not go to work. The management must be informed of your decision. And this must be done in writing. This is the fourth part of Article 71 of the Labor Code.
A letter of voluntary resignation must be submitted at least three days before the date of the resignation itself. Therefore, answering the question, can i quit on probation, the answer is yes, but all procedures are followed.
The law does not provide for any special form of such a statement. It is enough to compose it in free form. But the following things must be reflected in it - the date of dismissal and the reason. The latter is described simply in the words: "of their own free will."
For example, voluntary application on probation might look like this: 
There is no need to write specific reasons for your decision. You can be forced to voice them only in a confidential conversation. The bosses are always interested in why the employee refused to work for the company. But you can only voice them if you want.
Another nuance. Many are interested in how it happens dismissal on probation on sick leave... So: it is prohibited only if the dismissal is initiated by the employer. If on their own, then sick leave will not be an obstacle to leaving the company.
Deny a right like dismissal "on their own" during the probationary period, the employer cannot. And when the date specified in the application arrives, the employee can consider himself completely free.
By the day of dismissal in the personnel department, they fill out the work book properly and transfer it to the employee. On the same day, the company must fully calculate the resigned employee. This is spelled out in Art. 77 of the Labor Code of the Russian Federation.
There is another borderline case - when voluntary dismissal on probation occurs even before a person has worked even one day. That is, they had already signed a contract with him, and then he sharply changed his mind. With this development of events, the contract is simply canceled, which is reported in a separate order. And no other paperwork is needed.
Testing
Answering the question, is it possible to quit on probation, we have shown above that it is possible, but all the formalities must be observed. Namely - to submit the relevant application at least three days in advance. At the same time, in this case, the management cannot assign any additional work to the employee. These three days before dismissal will actually mean working off. But at the same time, it is the calendar days that are taken into account.
EXAMPLE
An employee has the right to apply on Thursday and only go to work on Friday. Since the weekend, he can consider himself a free person.
The only caveat: if the employee himself wants to leave not after three days, but, say, two weeks later, as indicated in the corresponding petition. Then these two weeks will be regarded as probationary dismissal.
Without working off
But still, how to quit on probation without working off? The answer is simple. According to the law, an employee is required to notify management in advance about their plans to leave. Therefore, the period between filing an application and the actual dismissal will be equated to working off. But if there is not the slightest desire to appear at the service, then the only option in this case is to personally agree with the manager.
If for the bosses this is not a matter of principle, then the failed employee is worth nothing, how to quit on probation... In addition, management is well aware that an employee who is almost fired will no longer perform his duties so well. And therefore, such an employee of the company, in principle, is not needed. Therefore, his departure will be painless. But if an amicable agreement has not been reached, then the employee will still have to be like work. Absenteeism in this case can be fraught with unpleasant consequences. Such, for example, as deductions from wages and the mention of this basis in the work book.
During sick leave
Sick leave or vacation are those cases when can I quit on probation only of their own free will. At the same time, the management cannot decide to fire you until you go to work. This rule is strictly regulated by Article 81 of the Labor Code of the Russian Federation.
But there is a small nuance - if the employee is on probation and took sick leave, then this verification period is temporarily frozen. And days spent outside of work are not included in it. And when you re-enter the service, these days are added to those that still need to be worked on a probationary period.
Nuances
There are several nuances that both the employee and the employer should know.
Extension of the test
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.
Vacation
The trial period is also eligible for vacation. It is calculated from the formula - two days for each month. And if the employee decided to quit, then when paying with him the employer is obliged to pay for these days as well.
In the article brought to your attention, the dismissal based on the test results is discussed in detail. In the part of the test at hiring, the amendments affected the circle of persons to whom the test cannot be established, and the duration of the test. It is equally important that the Labor Code enshrined the inclusion of dismissal due to an unsatisfactory test result among the grounds for terminating an employment contract on the initiative of the employer.
A test at hiring is a check of an employee's compliance with the work entrusted to him, allowed by labor legislation and established by agreement of the parties to the employment contract.
Article 57 of the Labor Code of the Russian Federation, which discloses the content of an employment contract, refers to its mandatory and additional conditions. Additional conditions are called so because they are not mandatory, and can be included in an employment contract only by agreement of its parties. The legislator gives an open list of such conditions: on specifying the place of work (indicating the structural unit and its location), on nondisclosure of secrets protected by law, on testing, etc. Thus, a trial agreement is one of the additional conditions of an employment contract and can be included in him only by the will of both sides.
Please note! In the event that the employment contract does not contain such an additional condition as a test condition, the employment contract is considered concluded without a test
However, this does not mean that any test conditions that have actually been agreed by the parties to the employment contract can be included in it.
The test condition should not worsen the legal status of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, collective bargaining agreements, agreements, local regulations in force with the employer. For example, an employment contract cannot establish a longer probation period than that established Labor Code of the Russian Federation or other federal law.
When is the probationary period
First of all, one must remember that a test for an employee is established only when an employment contract is concluded ( h. 1 tbsp. 70 of the Labor Code of the Russian Federation). Therefore, after a written employment contract is concluded without a test, a test condition can no longer be entered into it, even if the employee has not yet started work.
However, in practice, there are often cases when an employee with whom an employment contract has not yet been formalized in writing is allowed to perform work ( h. 2 tbsp. 67 of the Labor Code of the Russian Federation). Is it possible in the future, when drawing up an employment contract, to include a test condition in it? In accordance with the new edition article 70 in this case, this condition can be included in the contract only if the parties nevertheless formalized it in the form of a separate agreement before starting work.
Thus, an employee is considered accepted with a test if before the actual start of its work the corresponding condition was included in the employment contract signed by him and the employer or formalized by them in the form of a separate agreement.
Is it possible to assign a test to an employee when transferring him from one position to another?
The general rule is that it is impossible to establish a test for an employee when transferring from one position to another at one employer. However, as you know, there are exceptions to any rule.
So, the legislation of the Russian Federation provides for the establishment of a test when transferring from one position to another for civil servants (Article 27 of the Federal Law of 27.07.04 No. 79-FZ "On the State Civil Service of the Russian Federation"). The same rule is established by the laws of the constituent entities of the Russian Federation for municipal employees.
Test features
Probation for an employee is always set for a certain period, which cannot be extended, even if the employee does not object to this. The trial period does not include the period of temporary disability of the employee and other periods when he was actually absent from work.
If the established test period has expired, and the employee continues to work, then he is considered to have passed the test. It should be borne in mind that the subsequent termination of the employment contract with the employee is allowed only on general grounds ( Art. 77 of the Labor Code of the Russian Federation).
During the trial period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations in force for this employer. Consequently, the employee has the right to receive wages in full, and the establishment of a reduced wage for the period of probation is illegal. However, violations of this kind are often encountered in practice. For example, in the labor contract of an employee accepted with a trial, in violation of the law, payment for the trial period is stipulated in a smaller amount than the official salary for the position established by the same contract.
Quoting the document
An employment contract that is not executed in writing is considered concluded if the employee started work with the knowledge or on behalf of the employer or his representative. With the actual admission of the employee to work, the employer is obliged to draw up
with him an employment contract in writing no later than three working days from the date of the actual admission of the employee to work. |
Pay attention! It is unlawful to establish an employee for the test period wages in a smaller amount than that provided for by the organization's staffing table for this position.
In addition to the fact that during the trial period the employee is assigned responsibilities for performing the assigned work, obeying the internal labor regulations and others, he also has all the rights granted to the employees of this employer, incl. the right to receive temporary disability benefits in case of illness, etc.
In turn, the employer also has all the rights granted to him; in particular, he can demand from the tested employee the fulfillment of all obligations stipulated by the employment contract, can remove him from work in certain cases, bring him to disciplinary and material responsibility.
Who cannot be tested
New edition Art. 70 of the Labor Code of the Russian Federation The Labor Code has increased the number of persons who cannot be established with a test when hiring.
Earlier, part 2, 3 of Art. 74 of the Labor Code of the Russian Federation | Now, Art. 72 2 of the Labor Code of the Russian Federation |
|
|---|---|---|
| A test at hiring is not established for: |
So, now the list of persons who cannot be assigned a test has been supplemented by women with children under the age of one and a half years. In our opinion, the introduction of a ban on the establishment of a test for this category of women significantly reduces the possibility of their employment. At the same time, the establishment of such a prohibition is logical, since dismissal with an unsatisfactory test result by Federal Law No. 90-FZ of June 30, 2006 was recognized as dismissal at the initiative of the employer ( p. 4 h. 1 art. 77 of the Labor Code of the Russian Federation), and termination of an employment contract with women with children of the above-mentioned age is still not allowed on the initiative of the employer (except for dismissal on the grounds provided for in paragraphs 1, 5-8, 10 or 11 of part one Art. 81 or paragraph 2 tbsp. 336 of the Labor Code of the Russian Federation). At the same time, it should be borne in mind that women with children under the age of three years (and not only up to one and a half), as well as single mothers raising a child under the age of 14 (a disabled child under 18 years) and other persons raising these children without a mother. Although these categories of workers are not directly attributed to the number of persons for whom the test is not established, the possibility of their dismissal in the event of an unsatisfactory test result will depend on whether they fall under the restrictions established at the time of dismissal. part 4 of Art. 261 of the Labor Code of the Russian Federation.
According to the new rules, not all "young specialists" who have graduated from educational institutions of primary secondary and higher vocational education and are entering a job for the first time in their specialty can be tested. The test is not established for these persons if they graduated from an educational institution that has state accreditation and for the first time enter a job in their specialty within one year from the date of graduation from the educational institution.
In addition, in the article 70 of the Labor Code of the Russian Federation now reflected the ban on the establishment of probation for persons concluding an employment contract for a period of up to two months, which was already enshrined in Art. 289 of the Labor Code of the Russian Federation.
It should be borne in mind that the list of persons who are not installed the test, given in Art. 70 of the Labor Code of the Russian Federation is not exhaustive. So, the test is not established for persons who have successfully completed the apprenticeship, when concluding an employment contract with the employer, under the contract with which they were trained ( Art. 207 of the Labor Code of the Russian Federation). Moreover, the legislator left a certain freedom for the employer, providing for the possibility of establishing by a collective agreement an additional circle of persons who cannot be tested.
If a probationary condition was established in an employment contract with a person who, in accordance with Labor Code of the Russian Federation or other federal law, a test at hiring cannot be established, this condition should not apply ( h. 2 tbsp. 9 of the Labor Code of the Russian Federation). And in the case of the dismissal of such an employee based on the results of the test and his appeal to the court with a claim for reinstatement at work, this claim shall be satisfied.
Test period
As before, the probationary period, as a rule, cannot exceed three months. At the same time, for some cases of the conclusion of an employment contract, a different limit is set for the duration of the test. According to the new edition Art. 70 of the Labor Code of the Russian Federation when concluding a fixed-term employment contract for a period of two to six months, the trial cannot exceed two weeks ( h. 6 art. 70 of the Labor Code of the Russian Federation).
A longer test period is set for the heads of organizations, their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations. For these persons, the trial may not exceed six months. The application of this norm, as before, is hampered by the fact that the concept of a "separate structural unit" is not defined in labor legislation.
Please note! In accordance with Labor Code of the Russian Federation terms, calculated in months, The duration of the probationary period for different categories of workers in weeks, expire on the corresponding date of the last month or week of the term. It should be borne in mind that non-working days are also included in the period calculated in calendar days, weeks. If the last day of the term falls on a non-working day, then the next working day following it is considered the end of the term.
Duration of the probationary period for different categories of employees
Extended test periods other than those specified Labor Code of the Russian Federation and other federal laws cannot be established by an employment contract or local regulatory act.
The test period begins to run from the first day of work ( h. 1 tbsp. 14 Labor Code of the Russian Federation). As already noted, the period of temporary disability and other periods when the employee was actually absent from work is not included in the trial period.
Other periods include any periods when an employee is absent from work, regardless of the reason for his absence. For example, an employee is on unpaid leave, on leave in connection with training, the performance of state or public duties, as well as the time the employee is absent from work without good reason.
Test procedure
Unfortunately, neither the procedure for conducting the test, nor the form for determining its results have been established at the legislative level. The employer forms conclusions about the "satisfactory" or "unsatisfactory" test results on the basis of his own assessment of the employee's suitability for the assigned work.
By the way
Civil Code of the Russian Federation (Art. 55) refers to structural divisions only branches and representative offices of a legal entity.
The Tax Code of the Russian Federation(Art. eleven) other separate structural subdivisions include any subdivisions geographically separate from the organization, at the place of which stationary workplaces are equipped. Recognition of a separate organizational unit as such is carried out regardless of whether its creation is reflected in the constituent or other organizational and administrative
When organizing a test for a specific employee, you can take as a basis the procedure for passing it in state bodies. As a rule, the employee's immediate supervisor (curator, mentor) draws up an individual work plan for the test period (test program). It is advisable that this plan be approved by the head of the structural unit in which the subject works. It should be borne in mind that the approval of these plans should be within the competence of the manager (i.e., it can be enshrined in the regulation on the structural unit, the internal labor regulations or in a special local normative act regulating the procedure and conditions for passing the test when applying for work). The employee must be sure to familiarize himself with this plan, and not only orally.
The work plan (program) must be drawn up in such a way that the employee during the test period could demonstrate his professional skills and abilities. The subject can also be given special tasks, but within the limits of his official duties. In this case, it is advisable not only to keep records of the work done, but also to note the quality of its implementation.
Of course, the process of "documenting" the test takes time and requires additional labor costs both from the heads of structural divisions, mentors, and from employees of the personnel management service, nevertheless, in the end it pays off. First, it allows an objective assessment of the work performed by the employee during the test period. And secondly, if the employee fails, the employer will have evidence of his inconsistency with the assigned work. Therefore, it is simplified to justify the unsatisfactory results of the test.
Termination of an employment contract (dismissal) based on test results
If the employer is not satisfied with the results that the employee showed during the trial period, the employer may, before the expiry of the trial period, terminate the employment contract with him on the basis of h. 1 tbsp. 71 of the Labor Code of the Russian Federation.
Despite the fact that the employee is fired based on the test results, the employer is not obliged to wait for the expiration of the established probationary period and may decide to terminate the employment contract much earlier - for example, when it comes to a reasonable conclusion that continuing the test is inappropriate.
Please note! If the employee passed the test successfully, then the end of the test, according to the law, does not require any additional registration.
The employer must notify the employee of his decision to terminate employment with him no later than three days in advance. The legislator imposes special requirements on the warning (notification) form: it must be in writing and must contain information on the reasons that served as the basis for recognizing the employee as having failed the test. When drawing up a notice of termination of an employment contract (as a rule, this is done by an employee of the personnel service), they are usually guided by the conclusions of the manager, curator or mentor of the employee who was entrusted with the assessment of the test results, and by documents (memoranda, acts, explanatory notes of the employee himself, etc.) characterizing the quality of the work performed.
It is advisable to draw up a notice in duplicate and leave a copy with the employee's signature with the employer to confirm that he received such a notice. When drawing up a document in one copy, it will be difficult for the employer to prove the fact of warning the employee.
Please note! Absenteeism, the appearance of an employee at work in a state of alcoholic intoxication and other disciplinary offenses are not grounds for dismissal as a failure to pass the test. These are independent grounds for dismissal at the initiative of the employer.
Recently, as evidenced by judicial practice, workers often go to court with claims for reinstatement at work in connection with dismissal associated with unsatisfactory test results. Many of them are satisfied by the courts. The reasons for this are different, but the most common is insufficient justification for an unsatisfactory test result, in particular, the lack of documentary evidence of the conclusions, on the basis of which the employee was found to be inconsistent with the assigned work.
Kuksa O.M.,
Cand. jurid. Sci., partner of the law firm "Bureau of Labor Law"
The result of a new employee passing the probationary period can be both satisfactory for the employer and unsatisfactory.
If the result of the work of a new member of the team receives a negative assessment, then this will become the reason for his dismissal in a simplified manner.
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Is it possible to fire an employee on probation?
If the employment of the new employee does not suit the employer, then he has the right to dismiss the subject on the basis of part 1 of article 71 of the Labor Code of the Russian Federation. This the decision is subject to appeal in court, therefore, you need to strictly adhere to the rules for dismissal and correctly draw up all the necessary documents with confirmation of what the employee was fired for.
If the new employee continues to work at the end of the trial period, then it will be considered that his candidacy has been approved and it will become impossible to dismiss in a simplified form.
The warning requires:
If a new employee reported pregnancy (found out about it) during the probationary period, then it is impossible to fire her unless she takes the initiative (part 1 of article 261 of the Labor Code of the Russian Federation). But, there are exceptions to this rule, which are as follows:
- The organization where the pregnant woman worked was liquidated.
- Termination of the activity of the sole proprietor for whom the expectant mother worked.
- If pregnant worked in the place of another employee only during his absence, who expressed a desire to resume his labor activity (3 article 261 of the Labor Code). But, in this case, the employer must provide the pregnant woman with a list of other vacancies.
If the employer has other reasons for dismissing the pregnant woman, then it will be impossible to terminate the employment contract.
Important! If the employer was aware of the employee's pregnancy even at the interview stage, then he has no right to establish a probationary period for her (Article 70 of the Labor Code).
Reasons for dismissal
There must be good reasons for dismissal, despite the fact that this action has a simplified procedure. TK norms protect the interests of the employee, and the notice of dismissal must state the reasons that led to this result.
You also need documents, confirming the violation labor discipline, irresponsible attitude to work, etc. Otherwise, the employee can go to court to appeal the dismissal.
The reasons why the result of passing the probationary period can be considered unsatisfactory are as follows:
- Absenteeism.
- Disobedience to orders of superiors without reason.
- Performance of labor activity under the influence of drugs or alcoholic substances.
- Lack of implementation of the work plan.
- Negative assessment of the performance of official duties.
Any kind of poor-quality performance of their duties by an employee, must be documented, in accordance with the law for each type of violation.
The list of documents usually includes:
- Reports on behalf of managers addressed to superiors.
- Explanatory in writing from employees.
- Acts of absenteeism, cash shortages, presence at work under the influence of alcoholic and / or narcotic substances.
- Disciplinary Orders.
The management is obliged to issue to the employee against signature written warning... If the employee is not going to sign the document, in this case, the manager must fill out the appropriate act.
There is no single form of warning, but you can use an example.
Is the employee obligated to work off?
If an employee is subject to dismissal during the execution period, then he needs to familiarize himself with article 71, part 4 of the Labor Code of the Russian Federation. Based on this, to the question: is there a need to work out two weeks, you can categorically answer - the period of working out in this case reduced to three days.
There are no provisions in the articles of the Labor Code of the Russian Federation according to which an employee can do without working off.
An employee can complete his labor activity without working off, in accordance with part 2 of article 80 of the Labor Code of the Russian Federation. To quit in this way, you need not only the desire of the employee, but also employer consent.
The Labor Code of the Russian Federation does not provide for other conditions for new employees undergoing a trial period, for this reason, the employee can be laid off without working off, but for this you need to obtain the consent of the employer.
Termination procedure
It is important to follow the main points of the step-by-step instructions for dismissal. Dismissals must be confirmed by the necessary documents, be on absolutely legal grounds and correctly formulated.
The ideal situation is when the employee is initially given a task plan, which contains responsibilities that correspond to the job description.
The employee must be accountable for the correct implementation of each item of the plan. If any item is not ready or performed poorly, then the manager has the right to take explanatory from the employee.
Documents confirming poor quality work:
- Reports from the supervisor that the work has not been done or is done poorly.
- Acts in which the marriage is recorded.
- Negative description of the employee from the management.
- Customer dissatisfaction in writing.
Three days' notice to the employee gives the right to fire him during the probationary period. This document must be prepared in the form form in duplicate... This notification does not have a uniform form for all, but it must necessarily contain:
- Organization details and its name;
- Date of preparation of the document;
- Surname, name and patronymic of the employee;
- Information about the dismissal and the wording of the reasons;
- Date of dismissal.
This notice must be signed by the employee and dated. If he refuses to do this, then the head needs to draw up an act.
After the document is signed, it is transferred to the personnel service, which draws up a dismissal order. It also needs to be submitted to the employee for signature. If the employee refuses to sign, another act is drawn up. Further, the document is registered in the order book.
Features of reduction after the trial period
Although the dismissal of a new employee occurs as a result of the probationary period, the leader has the right not to wait the end of this period, and communicate your intention much earlier.
This usually happens when the employer comes to the conclusion that it is inappropriate to keep the employee any longer.
Important! If a citizen came to work under the influence narcotic or alcoholic substances, then there is no reason for his dismissal, as he did not pass the probationary period. These circumstances are independent for dismissal at the initiative of the employer.
Here it is required to pay attention to the fact that if the employee copes well with his job duties and the probationary period has passed without complaints, then the end of this period no need to confirm additional papers.
It is important not to lose sight of the fact that the notice of dismissal is drawn up in two copies. The copy signed by the employee remains with the manager. If this is not done, then later problems with proof that the employee received a warning.
The video below discusses some aspects of dismissal for failure to pass the probationary period:
Dismissal on probation at the initiative of the employer or at the request of the employee himself several differs from the standard... This procedure is greatly simplified and allows both parties to disperse quickly and with minimal red tape.
At the same time, a personnel officer or manager who is interested in what article to dismiss an employee who has not passed the probationary period should know: there is no such article.
And yet, it is possible to fire a person who has not passed the probationary period. According to article 71 of the Russian Labor Code, the employer has the right to fire an employee if tests gave "unsatisfactory results"... Once again, it is worth noting that the employee of the company must be admitted precisely with a probationary period, this must be documented (and correctly formulated!):
- in an employment contract;
- or in a supplementary agreement to such an agreement.
Important: the test must be written it is in these documents(in at least one of them). The lines in the order for employment alone are not enough (part 4 of the Labor Code of the Russian Federation).
If there is no agreement or clause on the probationary period, the employee began to work, he is considered to be hired on a general basis under article 67, part 2. If the trial period has expired, there is no notice of dismissal, then he is considered a staff unit... He can only be dismissed:
- at the end of the contract;
- by applying disciplinary action in the form of dismissal;
- for other (force majeure) reasons listed in Article 81;
- by agreement of the parties.
In this case, the employee will already be able to go to court, receive compensation (except for cases of disciplinary action, the reasons and rules for the application of which are given in the articles of the Labor Code of Russia), recover from work, file claims, and so on.
During the probationary period, the employer can fire the employee is quite easy and without the payment of severance pay. Dismissal is possible even on the first, even on the last day of the test. However, for this you need to observe a certain procedure... Otherwise, later, such an employee will be able to go to court for reinstatement or for compensation.
Attention: it happens that employees, at first glance, easily agree to quit during the probationary period at the request of the employer. If in the work book will not be given as a reason dismissal is specifically "their own desire", but there will be just a reference to article 71, the employee will be entitled to go to court.
Unsatisfactory result: how to fix
Dismissal of an employee who has not passed the probationary period must be justified.
The simplest justification is the poor result of his work.
In legislation there is nothing about what an "unsatisfactory result" is, how and with what documents it can be confirmed. The only paper to be referenced is job description.
However, in most companies, they are compiled on the basis of standard forms. So the result is a very vague document, often very far from reality.
It is also not too easy to write down the “labor function”. Although according to the law and you can work outside your specialty or in a specific position, namely, performing some type of work, employers and personnel officers rarely add a function to an employment contract.
So how to properly register the failure to pass the probationary period?
Also, the immediate supervisor of the employee can convene a commission to assess the performance of a new colleague. If, based on its results, an act of unsatisfactory test result is drawn up, it will be possible initiate dismissal during the trial period. The commission must be legitimate, that is, its fee should be provided internal company documents.
Dismissal procedure
What is the procedure for dismissal on probation? Below is a step-by-step instruction on how to apply legal methods to test failures.
Under the law, the bosses can fire an employee, only warning him three days in advance before dismissal (Article 71). However, this must be done not orally, but in writing and in the entire form.
Required in writing substantiate the reason failure at the place of work (unsatisfactory test result). After that, you need to notify the employee in writing that the contract terminated in accordance with part 1 of article 71 of the Labor Code of the Russian Federation due to the fact that the test result is considered unsatisfactory.
This notice has a form with required fields to fill out.
A notification is drawn up personnel officers or lawyers in duplicate.
Must sign it immediate superior employee (or personnel officer), as well as the dismissed employee.
One copy remains with the employer, the second - with the former subordinate.
Required fields:
- organization details;
- Full name of the dismissed employee, position, department, postal address of the employee's place of residence;
- name of the document (Notice No. XX on termination ... in connection with ...);
- the number of the contract to be terminated, with whom it was concluded (name of the employer);
- the test period specified in the contract;
- reasons (unsatisfactory test result);
- documents confirming the validity of the employer's claims (according to Act No. XX, which is an attachment to this notification);
- the date of termination of the contract;
- article of the Labor Code and other grounds for termination (paragraph 1 of article 71)
- Full name, transcript and signature of the employee, an indication (preferably by hand) that he is familiar with the notification, received a copy in his hands, a date must be put next to it;
- you also need a position and visa of a person (chief, personnel officer) on the part of the employer;
- notifications are necessarily recorded in the corresponding journal.
Important: if employee refuses to accept notification, draw up the corresponding act (DOWNLOAD and). It must be signed by the compiler and several other colleagues who witnessed the refusal. You can also send an additional copy of the letter of resignation by mail by letter or telegram with notification.
Further, the director issues and signs order No. XX on termination of employment contract No. XX (forms T-8 () for one employee or T-8a () for collective termination). In the order reasons must be given unsatisfactory test, documents confirming this fact. This order need to register in the corresponding journal.
The dismissed employee must be familiar with the order, what to do on it corresponding entry with date and signature.
If he refuses to endorse the document, proceed in the same way as in the case of a notice of dismissal: fix the fact on the document, collect a commission of three people, draw up an act (DOWNLOAD and).
Calculation, including for unused vacation days, according to Article 140 must be made on the day of dismissal... If an employee is dismissed in absentia, then the amounts must be paid, as soon as he contacts the accounting department enterprises. No compensation for early termination not provided.
In addition, a corresponding entry must be made in the labor document. indicating the reason and article number, according to which the contract is terminated. Necessarily it is necessary to indicate that the dismissal occurs at the initiative of the employer.
Former employee is also mandatory signs on a personal card in the personnel department that he received labor in his hands. A corresponding entry is made in the journal of the movement of personnel documents.
And at the end of the procedure, copy of work book for storage in the archive of the company.
If the employee does not want to take the work book or sign on the personal card, you need to act as in other cases of refusal: collect a commission of three people, draw up acts.
DOWNLOAD samples of disclaimers: and.
DOWNLOAD waiver forms: and.
Important: in the event of a confrontation with the boss, the employee on probation more profitable either resign of their own free will, or agree with the wording of the employer who initiated the dismissal.
The procedure for dismissing employees even during a probationary period not so simple: you will have to collect a mountain of documents confirming the proficiency of the subject. In such a situation, it is better for the bosses and subordinates not to spoil each other's life and disperse. as simple as possible... That is, at the initiative of the subject.
If the dismissed employee decides that the superiors refuse him to work under Article 71 unreasonably, he will be able to go to court, attract witnesses and prove his professional suitability.
True, the union is for him in this case will not intercede... Yes, and to work, having recovered in office, it will be extremely difficult.
Useful video
This video provides interesting examples on the topic described above, specific advice to employers not only about the dismissal of an employee who has not passed the probationary period, but also about the rules of registration for the period of trials.