When hiring in successful organizations and structures to verify compliance with the requirements and conditions of the company, a verification period is often set for him. A situation may arise in which it is necessary to make a dismissal during the probationary period. How is it possible to do this?
The working relationship between the enterprise and the employee is regulated by the Labor Code, which does not establish as a mandatory requirement that new personnel undergo any verification period. However, many companies use this option to consider the suitability of a potential specialist. It is also convenient for the worker, who during this time gets acquainted with the working conditions, the team, is determined with the possibility of long-term cooperation.
When establishing the test term, you need to know that certain categories cannot have it:
The presence or absence of time for testing is prescribed in the contract, that is, if there is no clause about it, the reason for dismissal cannot be unsatisfactory passing the test. term.
The maximum test time is three months, for management personnel up to six months. If an employee gets a job under a temporary agreement, for a period of two weeks to six months, the maximum period is two weeks.
The duration of the check is counted as the actual time worked. If the worker falls ill, then it is extended for the duration of the sick leave.
The initiator of the dismissal of an employee may be the employee himself or the company. In any case, the legislation determines the written order of the procedure.
Dismissal during the probationary period at the initiative of the employee must be formalized by an application. Its form is arbitrary, the reason for the termination of the contract is not required, the wording "At will" is enough.
The employee is obliged to submit an application no later than three working days before dismissal. After this period, the worker is issued a work book and paid for the hours actually worked. If the head is dismissed, then the term of his possible working off is 1 month.
In these cases, the reason for the impossibility of working out is written in the application and supporting documents are attached.
If the enterprise at its own expense trained new personnel, then they are required to work for a certain period in this company. In the presence of this condition in the contract, the employer may demand compensation for training.
In the case when the termination of the contract occurred immediately after its conclusion, then an entry in the work book is not made and it is simply canceled.
If the employer is not satisfied with the professional or personal qualities of the newcomer, he has the right to dismiss him without waiting for the end of the verification period. Among the reasons may be violations of labor discipline, lateness, tactless behavior, absenteeism, etc.
To dismiss an employee who is on probation, the following procedure must be followed:
After the probationary period, dismissal is carried out in the standard mode with a working off of 2 weeks or by agreement of the parties.
There are certain restrictions on the dismissal of employees:
So that there are no reasons with which the employer or the defendant can go to court after dismissal, it is necessary to strictly follow the procedure for registration provided for by law.
Employers should know:
Employees need to know:
Subject to the legality of the procedure, the termination of the employment relationship will be quick and painless.
Establishing a probationary period when concluding an employment agreement is not mandatory, but employers often resort to a similar method of testing new employees. This is done in order to facilitate the dismissal of unsuitable personnel. However, before dismissing an employee on probation, it is necessary to carefully consider what grounds will form the basis of the order to terminate the employment agreement.
The condition of the test, which is established when hiring, also plays the role of one of the ways to protect the interests of the employee himself. In the event that the situation in the new place for some reason does not suit the accepted employee, he will not have to work for two weeks in connection with the dismissal of his own free will. Thus, the establishment of a condition for passing a probationary period also protects the rights of an accepted employee.
In accordance with Article 70 of the Labor Code of the Russian Federation, the deadline for establishing a test is limited to three months in normal cases, and six in the case of hiring employees for the positions of managers, relevant deputies and chief accountants. The maximum duration of the probationary period is reduced to two weeks if the employment contract is concluded for a short period of 2 to 6 months. The specified terms cannot be changed upwards by agreement of the parties, with the exception of cases provided for by federal law.
For example, according to paragraph 1 of Art. 27 FZ dated July 27, 2004 No. 79? FZ "On the Civil Service of the Russian Federation", upon admission to the civil service, a probationary period from 3 months to 1 year can be established.
It must also be remembered that the trial period does not include days of actual absence from work for good reasons (sick leave, vacation, etc.).
Both the employer and the employee can act as the initiator of the termination of the work contract during the probationary period. However, Article 71 of the Labor Code of the Russian Federation provides that there is an obligation for an employee to work for three days after submitting an application. This rule greatly simplifies the life of an employee who needs to terminate an employment relationship in a short time, for example, if a more favorable job offer has been received.
The employer, before dismissing an unsuitable employee during the probationary period, is obliged to warn about the decision made in the manner prescribed by law. That is, no later than three days before the actual termination of the employment relationship, the employee must be informed about the date and reasons for termination of the employment agreement. If the person was not informed of such a decision, and at the end of the trial period specified in the agreement, continues to perform his functional duties, it is considered that the employee has successfully passed all the conditions of the test and his subsequent dismissal is possible only in a general manner.
In all cases, before making a decision and dismissing an unsuitable employee at the end of the probationary period, one should carefully approach the execution of related documents, since these actions can be challenged in court.
As a rule, the goal of an employer who makes such a condition in an agreement is the quick and painless dismissal of incompetent employees. However, when deciding whether it is possible to dismiss an employee during a probationary period, employers often forget that there is a list of persons who, in accordance with Art. 70 of the Labor Code of the Russian Federation does not initially establish a probationary period. In connection with this prohibition, such employees can only be dismissed in accordance with the general procedure, on the grounds provided for in the thirteenth chapter of the Labor Code of the Russian Federation.
Federal laws and the collective agreement may also provide for other categories of citizens who, when hiring, cannot include such a condition in the labor agreement.
An employee who was fired during a probationary period due to an unsatisfactory result has the right to appeal against such actions of the employer in court. Since by default the court always takes the side of the dismissed employee, the employer needs to have strong evidence of his innocence. The key to a successful trial is properly executed documents confirming that the employee failed the test. It is recommended that the Human Resources department perform the following steps in order to prepare the appropriate evidence of correctness.
In any case, employee errors must be recorded and documented in writing: the following can serve as confirmation:
It is advisable to acquaint the employee with such documents against signature, and after each “miss” require an explanatory note.
In the case when the above documents are not available, and all instructions were given to the employee orally, it is necessary to create a special commission at the enterprise to determine the results of passing the test and recommend how the employee can be dismissed on probation without violating the law. The corresponding decision must be formalized in the minutes.
If, nevertheless, a final decision is made that the employee is not suitable for the duties of the vacant position, he must be warned about the upcoming dismissal. The notice period cannot be less than three days before the day of dismissal and the end of the probationary period (part 1 of article 71 of the Labor Code of the Russian Federation). Thus, the question that often arises as to whether it is possible to dismiss before the end of the probationary period has an unambiguously positive answer.
On the notification, the employee must put his signature on familiarization and the corresponding date of delivery of the copy.
In case of violation of the three-day period and the end of the trial period, failure to pass the test will not be the basis for terminating the employment agreement. An employee, in this case, can be fired only on general grounds.
Dismissal on probation at the initiative of the employer or at the request of the employee himself different from 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: no such article.
And yet, it is possible to dismiss a person who has not passed the probationary period. According to article 71 of the Russian Labor Code, an employer has the right to fire an employee if tests gave "unsatisfactory result". Once again, it is worth paying attention that the employee of the company must be accepted precisely with a probationary period, this must be documented (and correctly formulated!):
Important: test must be written in these documents(at least in one of them). A line in the employment order alone is not enough (part 4 of the Labor Code of the Russian Federation).
If there is no agreement or probationary clause, the employee has started working, he considered to be employed on a general basis under article 67 part 2. If the trial period has expired, there is no notice of dismissal, then he considered to be a unit. He can only be fired:
In this case, the employee will be able to go to court, receive compensation (except in cases of application of a disciplinary sanction, the reasons and rules for the application of which are given in the articles, the Labor Code of Russia), be reinstated at work, file lawsuits, and so on.
During the trial period, the employer can fire worker quite easily and without paying severance pay. Dismissal is possible even on the first, even on the last day of the test. However, for this you need to comply certain procedure. Otherwise, later such an employee will be able to apply to the 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 dismissals are specifically “own desire”, but there will be simply a reference to article 71, the employee will be entitled to go to court.
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 that can be referenced is job description.
However, in most companies they are compiled on the basis of standard forms. So it turns out a very vague document, often very far from reality.
Prescribing a "labor function" is also not too easy. Although 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 include a function in an employment contract.
So what is the right way to complete probation?
Also, the immediate supervisor of the employee can convene a commission to evaluate the performance of a new colleague. If, based on its results, an act of unsatisfactory test result is drawn up, it will be possible to initiate dismissal during the trial period. The Commission must be legitimate, that is, its fee must be provided company's internal documents.
What is the procedure for dismissal on probation? Below is a step-by-step instruction for applying legal methods to those who have not passed the test.
By law, management can fire an employee only three days' notice before dismissal (Article 71). However, this must be done not orally, but in writing and in all form.
Required in writing justify the reason failure at the place of work (unsatisfactory test result). After that, you need to notify the employee in writing that the contract is 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 notice is being drawn up personnel officers or lawyers in duplicate.
Must sign it immediate supervisor employee (or personnel officer), as well as a dismissed employee.
One copy remains with the employer, the second - with the former subordinate.
Required fields:
Important: if an employee refuses to accept notification, draw up the appropriate 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 notice of dismissal by mail by letter or telegram with notice.
Further, the director issues and signs order No. XX on termination of the employment contract No. XX (form T-8 () for one employee or T-8a () for collective termination). In order reasons must be given unsatisfactory test, documents confirming this fact. This order need to register in the relevant journal.
The dismissed employee must be familiar with the order, what to do on it corresponding record dated and signed.
If he refuses to approve the document, you need to act in the same way as in case of notice of dismissal: fix the fact on the document, assemble a commission of three people, draw up an act (DOWNLOAD and).
The 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 turns to accounting enterprises. No compensation for early termination not provided.
In addition, a corresponding entry must be made in the labor with reason and article number under which the contract is terminated. Necessarily it must be indicated that the dismissal occurs at the initiative of the employer.
Former employee is also required signs on a personal card in the personnel department that he received a 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 archives of the company.
If an employee does not want to pick up a work book or sign a personal card, you need to act as in other cases of refusal: collect a commission of three people, draw up acts.
DOWNLOAD samples of refusal certificates: and.
DOWNLOAD forms of refusal certificates: and.
Important: in the event of a confrontation with superiors, an employee on probation more profitable either quit of their own free will, or agree with the wording of the employer who initiated the dismissal.
The procedure for dismissal of employees even on probation not so simple: you will have to collect a mountain of documents confirming the unsuitability of the subject. In such a situation, it is better for superiors and subordinates not to spoil each other's lives and disperse in the most simple way. That is, at the initiative of the subject.
If the dismissed employee decides that his superiors are refusing 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 join. Yes, and work, being restored to office, it will be extremely difficult.
This video contains 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 for registration for the duration of the probation.
Dismissal on probation - myth or reality? Does the employer have the right to do so? And how should an employee behave in order not to be fired during the probationary period? Perhaps every employee at least once in his work experience faced similar issues. And of course, every employer thought about it. Let's try to figure out what a probationary period is and in what cases an employee can be fired during the test.
The probationary period is as much a part of the labor process as many other things, therefore, of course, the Labor Code of the Russian Federation stipulates the nuances of the probationary period, its establishment and passage.
1. Article 70 of the Labor Code of the Russian Federation "Probation for employment" regulates the duration of the probationary period, the rights of employees during the test, as well as restrictions on the establishment of a probationary period.
2. Article 71 of the Labor Code of the Russian Federation "The result of the test when hiring" stipulates mainly the issues of dismissal in the event that the employee has not completed the probationary period, but also affects the issue of successful completion of the test.
A probationary period is a period agreed with the employee and specified in the employment contract, when the employer finds out whether the qualifications and personal qualities of the employees meet the requirements that the employer imposes on his employees in general and for this position in particular.
For his part, the employee during this period can also look closely at the employer, the enterprise and the team and decide whether these conditions suit him.
At the same time, the probationary period from the outside does not differ from the usual labor process - except that dismissal during the probationary period occurs according to a simplified procedure, which makes the probationary period so attractive to many employers.
The probationary period is set only by agreement with the employee. If an employee refuses to pass a probationary period, no one can impose tests on him.
The probationary period is in a certain sense beneficial to both the employer and the employee - for both it is an opportunity to look at each other and decide whether everything suits them, before it is too late and it is still relatively easy to back out. After all, dismissal during the probationary period has a simplified procedure for both the employer and the employee.
In addition, during the probationary period, the employee has the opportunity to ask for advice from more experienced employees - although the probationary period is not an internship, when the curator must patronize and support the employee, the employee during the probationary period is still treated more condescendingly. True, on the other hand, during this period they are looking at him intensely, and, perhaps, the employee should not openly demonstrate incompetence and ask too many questions about the work process.
As a rule, a probationary period is set for newly hired employees - after all, even if such an employee provides a whole bunch of positive letters of recommendation, for some reason he may not be suitable for this particular employer.
A probationary period can also be set for an employee who has already worked for some time in this enterprise, if he applies for a higher position, or a position that requires completely different skills and qualities than those that the employee has demonstrated so far. In this case, it would be risky to immediately accept an employee for a position, no matter how good his track record is, so it would be more appropriate to establish a trial period. Of course, in this case, there is no talk of dismissal during the probationary period - if the employee does not cope with the test, he can simply return to his duties in his previous position.
p> There are also certain categories of workers to whom under the labor legislation in general it is forbidden to establish a trial period. These workers include:
It is also impossible to establish a probationary period for those employees with whom a fixed-term employment contract is signed for a period of two months to six months.
The duration, as well as other nuances of the probationary period, for example, the procedure for passing it and remuneration during this period, is established by the head of the enterprise. The procedure for dismissal during the probationary period is also established by the employer, but at the same time it must be based on the norms of labor legislation.
All these nuances must be described in the internal documents of the enterprise, and the employee who is supposed to pass the probationary period must be familiar with these documents.
The usual duration of the probationary period is from one to three months. The employer can set two months, and one and a half, and all three at once - as he wants. The only thing an employer cannot do is set up a second probationary period or extend the first if they cannot decide on the suitability of the employee.
In some cases, the length of the probationary period varies:
Of course, dismissal during the probationary period of these categories of employees is possible exactly on the same grounds as other employees on a probationary period.
As mentioned above, it is prohibited to extend the probationary period or establish a second one immediately after the first one. But in this case, it was only about the option when the employer, following the results of the probationary period, cannot decide whether to leave the employee at the enterprise or fire him - then the extension of the probationary period is really impossible.
But you need to know and remember that the probationary period includes only those days when the employee was present at the workplace. If, during the test, the employee, for example, took part in military training or was ill - that is, he was actually absent from the workplace, albeit for a good reason - these days are not counted in the probationary period. Therefore, if, under the contract, the probationary period ends, and the employee has “missed” days, an order can be issued to extend the probationary period.
Only in this case is it allowed to extend the probationary period.
Since the probationary period is set for a certain duration, sooner or later it must end. At the end of the probationary period, a decision must be made.
If the employee, in the opinion of the employer, has not coped with the probationary period, a dismissal order is issued, and the employee leaves the enterprise. We will discuss this procedure in more detail below.
In the event that the employee has shown himself well during the probationary period, and completely satisfies the employer in all respects, he remains at the enterprise. The procedure in this case is quite simple. When the probationary period ends, the employee simply remains to work, as he worked, no documents are required.
There is one tricky nuance here: if the trial period has ended and the employer has not fired the employee, by default it is considered that the employee successfully completed the test. So if there was an intention to dismiss an employee as having not passed the probationary period, one should not yawn.
When the probation period ends, the enterprise issues an order to dismiss the employee due to the unsatisfactory result of the test. The employee leaves on the same day specified in the order. An appropriate entry is made in the work book, the final settlement is made with the employee, the work book is handed over to him.
At the same time, the employee may ask the employer for clarification on what exactly the test result was unsatisfactory, so it is worth preparing a reasoned response to this request.
Of course, in the event that it becomes clear that the employee is not suitable, the employer has the right to dismiss him without waiting for the end of the probationary period - why, if everything is already clear?
In order to dismiss an employee during the probationary period as having shown a poor or unsatisfactory result, the employer must issue a written notice of dismissal to the employee three days before the date of dismissal. After that, the company issued a dismissal order. The order must necessarily contain a reference to Article 71 of the Labor Code - on dismissal due to the fact that the employee failed the test.
In addition, it is advisable to prepare a complete package of documents proving the incompetence of an employee, since the dismissal of an employee during a trial period, however, as well as dismissal based on the results of a trial period, can be appealed by the employee in court. Therefore, it is highly desirable to record all the mistakes of the employee in writing: if he was late for work at least for a few minutes - let him write an explanatory note, the fact of being late must be recorded in the act; did not complete the work on time - an act is drawn up, the employee signs that he is familiar with the act, and so on.
Of course, incompetence or violation of labor discipline is much easier to prove than, for example, the lack of communication skills of an employee or his uncleanliness in relation to employees - which can also cause dismissal in some cases - but if you wish, everything is possible. Especially if the team in this matter is on the side of the employer.
Dismissal based on the results of a probationary period, the employer may not coordinate with the trade union committee. In addition, in the event of such a dismissal, the employee is not paid severance pay.
A two-week working off, as happens upon dismissal at the initiative of an employee, is not provided for during the probationary period. Regardless of who initiates the dismissal: the employee or the employer. In both cases, if the dismissal occurs in the midst of a probationary period, the working off is only three days. If the dismissal occurs at the end of a predetermined probationary period, working off is not provided at all - the employee is dismissed on the day the probationary period ends.
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Today, the practice of hiring with a probationary period for a new specialist is very common. Most companies enter into appropriate contracts with interns.
This practice is provided for by labor legislation. However, the law establishes clear deadlines during which the employer can look closely at a new employee.
The probationary period for lower and middle-level specialists cannot last longer than 3 months, and for managerial positions and accountants, the probationary period is calculated as 6 months. Exceeding these terms is not allowed.
Hiring an employee for a job with a probationary period is necessarily displayed in the order and the employment contract. This will help avoid disputes in the future.
If the employment agreement does not contain information that the employee has been hired for a position with a probationary period, then the applicant works under normal conditions. The dismissal of such an employee as not having passed the test is not allowed.
Legislation does not provide for the introduction of any amendments to the current employment contract. Therefore, the employee is notified about passing the test before signing the agreement. If the employment contract provides for a probationary period, and this fact is not indicated in the order, then the employer must cancel the order. After that, you need to issue a new order, making the appropriate changes and familiarize the employee with them. The period of testing a new employee at the workplace cannot be extended, even if the parties to the contract agree to such conditions.
If an employee is not qualified for the position or does not cope with the duties assigned to him or systematically violates the rules of work, the employer may terminate the employment contract before the probationary period expires. If an employee believes that his rights have been violated, he can go to court.
Today, there are many cases of dishonest attitude towards employees who are on probation. For example, a company takes an employee and sets him a maximum probationary period, paying the minimum wage, and after the end of the probation, dismisses him with the wording "for non-compliance".
In case of dismissal of a person during the probationary period, the employer is obliged to indicate the reasons for terminating the employment contract.
Unsatisfactory results of work must be documented (an act of defective products, customer complaints, memos on violation of labor discipline or job duties).
When dismissing an employee during a probationary period, the employer must do the following:
