To determine the actual knowledge and skills of a candidate when applying for a job, it is not enough to provide recommendations from previous places, educational documents, etc. An enterprise has the opportunity to find out the qualities and skills of an employee by including a probationary period in the employment contract when hiring. Several articles in the Labor Code of the Russian Federation are devoted to this period.
represents a period during which the employee performs the work provided for by his job description, and the employer determines, based on the actual results of the employee, whether he is suitable for him or not.
At this time, all parties may terminate the action in a simplified manner. Basically, during the test, the worker is observed by a responsible person who checks his work and writes a report on it.
On the other hand, during this period the employee gets the opportunity to get to know his employer better, get acquainted with the new job, and leave in case of an unsatisfactory evaluation. Labor law rules determine that a probationary period at work can only be introduced by agreement between the employee and the company.
According to the current regulations of the law, employment testing is introduced for a period of 2 weeks to 3 months. The duration of the probationary period for the chief accountant and managers, their deputies and other positions can be up to 6 months.
At the same time, for persons entering the civil service, it is allowed to set its duration for 1 year. The maximum probationary period when hiring under an employment contract concluded for a period of two to six months should not exceed two weeks.
The company administration may terminate the test early if the employee shows that he meets the requirements and is capable of performing this work. To do this, the company must additionally conclude an agreement with the employee to the current contract.
After the expiration of the probationary period, if no objections are received from the parties to the employment relationship, the employment agreement is considered to be drawn up on a general basis.
Who cannot be tested
It cannot be entered when applying for a job:
- Pregnant candidates;
- Workers with children under 1.5 years of age;
- Young professionals who have just received a certificate or diploma of professional education;
- Employees hired by transfer from other employers;
- Persons who have not yet turned 18 years of age;
- Candidates selected as a result of a competition to fill a position;
- Elected to an elected position.
Test period for hiring not established for imprisonment for a period of less than 2 months. You also need to remember that you cannot introduce a trial period for already working employees.
Registration procedure
The test provision must be included in the employment contract concluded with the employee, and it is necessary to determine the exact duration of the test or its start and end dates. The test must be reflected in the employee’s hiring order. It is advisable that the application also contain a condition regarding this.
If, nevertheless, this period was provided only in the order, then it is considered that the employee was hired without a probationary period. This organization will also be confirmed by the court if it goes there regarding a labor dispute.
When an employee starts work without drawing up a contract, a probationary period condition can be included in this document only if there is a preliminary agreement between the parties, concluded in writing before performing work duties.
Having signed the contract, the employee must also familiarize himself with the signature. Then he must be provided with internal regulations and a job description with a list of responsibilities for reading. Here the employee must also sign. This is especially important if he has to be dismissed as having failed the test.
Information about the preliminary test is not entered into the work book.
Salary amount for the probationary period
Very often, employers set a reduced salary for the probationary period. This, according to the law, is a gross violation of employee rights. Salary for a specific position is determined based on the staffing table. When hiring an employee for a predetermined position, the company must provide an appropriate salary.
Being on probation does not make any exceptions for this; labor law norms apply in general order.
Is it possible to take sick leave?
Having hired an employee on a probationary period, the company is obliged to provide his social insurance in the general manner. That is, if he provides a certificate of incapacity for work during the probationary period, the company must pay for it. Therefore, the employee can safely contact doctors for medical assistance. Only they can ask for a certificate of employment in order to correctly fill out the supporting document.
However, according to the Labor Code of the Russian Federation, the period an employee is on sick leave is excluded from the duration of the probationary period. That is, when an employee leaves, the period of checking him at work will be extended by the number of days of illness.
Dismissal during probationary period
The main difference between a probationary period and regular work is the simplified procedure for terminating the employment agreement between the parties.
According to the general rules, in order to dismiss an employee during a test, the organization must warn him about this in writing at least three days before the date of dismissal.
However, here it is necessary to be very careful with such wording of dismissal as “failed the preliminary test.” To use it in a company, you need to appoint a responsible person who will check the test subject, record his successes and shortcomings in a special journal. At the same time, these records must be familiarized with the signature of the inspected employee. If the company does not formalize everything as expected, the subject can appeal the decision to dismiss in court.
The legislation also provides for how to resign during a probationary period if an employee is not satisfied with the working conditions, the work itself, or the salary. He does not have to wait two weeks, as with regular work. It is enough for the employee to notify the employer in writing in the form of a resignation letter three days before the expected date of dismissal.
The term “probationary period” is familiar to everyone who has ever applied for a job - this is the employer’s legal right, over a certain period of time, to evaluate the professionalism and knowledge of a potential employee. The probationary period lasts from three months to six months; the duration of validity is necessarily indicated in the employment contract; the employee must familiarize himself with all the details of the trial in advance. The employment record should not include information about the probationary period.
What is a probationary period according to the labor code?
In Russian legislation, all standards are spelled out in Article 70 of the Labor Code of the Russian Federation. There is also a definition of this term: this is a period of time that is set by the employer to assess the employee’s suitability for the position for which he is applying. At the same time, the terms and duration of the trial are specified in the employment contract itself.
Employment test
The procedure for testing a potential employee when hiring expresses the employer’s completely legal right to determine his professional skills and suitability for his position. It is important to remember that this is not a mandatory, but an additional condition of the concluded employment contract, which is made by agreement of both parties. This is not an obligation of the employer, rather it is his desire to check the employee, and if there is no doubt about the employee’s qualifications, there is no talk of any probationary period.
Probationary period when concluding an employment contract
It is worth remembering that an employee on probation is an equal member of the team, this is expressed in the fulfillment of his rights, as well as in the payment of wages. Many employers strive to offer applicants for a position a small salary. The Labor Code does not stipulate any special payment conditions for this case, but it is not directly prohibited from setting a lower salary for this time.
Registration procedure
All conditions are specified in the employment contract, which the company must conclude with the employee. The exact start and end date of the trial period (from 01/01/2002 to 01/04/2002) or its duration (two weeks, three months) is indicated. Do not forget that the employment order must indicate that the employee will be subject to verification of his suitability for the position held. One copy of the work contract is given to the employee.
Who should not be given a probationary period?
Employment under a probationary period is prohibited for a certain category of persons, which include:
- those who were selected for the position through a competition, in accordance with Russian legislation;
- pregnant women soon going on maternity leave;
- minor citizens;
- graduates of universities and other educational institutions for whom this is their first job;
- if the employee is elected to the selected paid rate;
- when transferring from another organization, for example from Moscow.
The law defines other conditions under which an employer does not have the right to impose a test for a vacant position:
- for temporary employment for up to two months;
- in the case where the employment contract is concluded before the completion of the apprenticeship period;
- in case of replacement for a specified period of civil servants of a certain category (assistants, advisers, managers);
- in the customs service when hiring graduates of specialized educational institutions of Federal significance and everyone who came to the customs service through a competition.
Duration of probationary period upon hiring
The standard probationary period for employment is three months. Senior employees - managers, chief accountants, financial directors, and their deputies can undergo a professional suitability test for up to six months. Another case is fixed-term employment contracts for a period of up to six months. Then this period should not exceed two weeks.
Minimum
The minimum probationary period for employment lasts two weeks in the case of a fixed-term employment contract (up to 6 months). When concluding a regular contract, the employer himself sets the duration of the labor test - from one to three months, depending on the position held. For senior managers this is three months. At the request of the employer, the duration of the work period can be reduced.
Extension of probationary period
The duration of the labor test is fixed in two fundamental documents - the employment contract and the employment order. There are cases when the probationary period can be extended: employee illness, time off, specialized training. Only these reasons can justify an extension. The employer issues an additional order indicating the period for which the test is extended and the valid reasons that served as the basis for this.
Maximum probationary period according to the labor code
When concluding a fixed-term contract lasting from two to six months or seasonal work, the trial period can only last 2 weeks. If an employee is hired on a permanent basis, then the maximum probationary period for employment is six months. These deadlines are prescribed in the Labor Code of the Russian Federation.
Early termination
The main reason for early termination of an employment contract is successful completion of the test. The employer issues an order for early termination of the test, which details the reasons for its termination. An employee can write a letter of resignation from the company if the position in which he worked did not suit him. Does the employer have the right to terminate the labor test early if the employee’s performance is unsatisfactory? Yes, but everything must be formalized according to the law (appropriate order), and the employee must be warned in advance..
Rights of an employee during a probationary period
Labor legislation clearly states that an employee who is on probation has exactly the same rights and responsibilities as other employees of the enterprise. This applies to wages, receiving bonuses, and establishing social guarantees. The candidate has the right to appeal in court any actions of the employer that infringe on the rights of the employee, including with regard to early termination of the employment contract.
Is it possible to take sick leave?
An employee who is on a probationary period has the right to take sick leave, the calculation of which will be calculated based on his average daily earnings. During sick leave, the period of labor probation is not counted; it resumes its effect when the employee returns to his place of work. In the event that an employee terminates cooperation with the employer (regardless of the reason), the employer is obliged to pay sick leave.
How is the salary determined?
An employee on a probationary period is subject to labor laws. This means that his rights should in no way be less than those of the main personnel. The salary must be set according to the staffing schedule. This can be circumvented by simply entering into the staffing table a reduced salary for “assistant managers” or “assistants”; its amount can be any, but not less than one minimum wage (minimum wage). The employer is obliged to pay sick leave, overtime, work on holidays and weekends.
End of probationary period
Let us immediately note that there is a situation when it is impossible to dismiss an employee after a probationary period: when during this period of time the employee became pregnant and brought the relevant certificates. In other cases, there are two options for ending the trial period.
- positive - both parties are satisfied with the work in the organization, then the employee is included in the staff according to the job description;
- negative – the employing company is not satisfied with the quality and result of the applicant’s work, a decision is made to terminate the contract (the order in the form indicates the reasons and evidence of the employee’s negligence).
The dismissal of an employee undergoing probation is always documented in as much detail as possible, because there is a good chance that the employee will consider such actions unlawful and sue the employer. This can be avoided by proving that the employee violated work rules, safety regulations, did not follow instructions, or was absent without a good reason. When hiring, it is necessary to receive a written notification from the employee with his signature that he was aware of all the internal regulations of the employer.
Video: working with a probationary period
The Labor Code indicates that the employer has the right to assign an applicant a test when hiring. This is necessary to check the professional qualities of the future employee. This does not mean that the employer is obliged to establish a probationary period.
indicate that a probationary period can be established for an employee only by agreement of the parties. However, in practice this is not the case. The employer confronts the job seeker with the fact that there is a probationary period, and the salary during this period is set somewhat lower than after it.
When hiring, even if there is a probationary period, the employer enters into an employment contract with the employee. The contract must indicate that the employee is hired “with a probationary period of ....”. The salary that the employer plans to pay the employee during the trial must also be specified in the contract. If there is no provision in the employment contract about assigning a test to the applicant when hiring, this means that the employee was hired for a vacant position without a probationary period.
Article 70 of the Labor Code of the Russian Federation states that the duration of the probationary period cannot exceed 3 months. If the head of the organization, his deputy, the chief accountant or his deputy are hired, the probationary period is increased to 6 months. If a fixed-term employment contract is concluded with an applicant for a vacant position for a period of 2 to 6 months, then the probationary period cannot exceed 2 weeks. If the employee was sick or was actually absent from the workplace for other reasons, these periods are deducted from the probationary period.
- persons who occupy a vacant position as a result of a competition;
- pregnant women;
- women who have a child under 3 years of age;
- minor workers;
- persons holding an elected position;
- persons occupying a vacant position as a result of a transfer from another employer;
- applicants who enter into an employment contract for a period of less than 2 months;
- to other persons, if this is provided for by local regulations or collective agreements.
The employee must understand that if there is a test, then there must be its results. They can be both positive and negative.
If the employee passes the test, then there is no need to conclude a new employment contract with him. He continues to work under the conditions specified in the employment contract concluded upon acceptance. If the results of the test, in the opinion of the employer, are negative, then he can terminate the employment contract with the employee before the end of the probationary period.
To do this, he must warn the employee in writing about the upcoming dismissal 3 days in advance. The notice of termination must also detail the reasons. The employer must justify its decision regarding negative test results.
If the employee does not agree with the results of the test, he must also notify the employer about this. If he considers his dismissal illegal, he has the right to appeal to the labor inspectorate or to court. The opinion of the trade union is not taken into account in this case. The employee also has the right to terminate the employment contract with the employer if, during the test, he decides that the job is not suitable for him for a number of reasons. To do this, he must notify the employer in writing 3 days in advance.
Probation period according to the labor code
According to established practice, a probationary period is a certain period of time during which the employer checks the suitability of the employee being hired for the position for which he is being hired.
Establishing the period required for probation is the right of the employer, but not his obligation. Therefore, if he believes that the applicant is suitable for the vacant position, he can hire him without passing the test.
The employer has the right to apply a probationary period to one or another applicant for a vacant position, regardless of the organizational and legal form of the enterprise and the goals of economic activity.
The appointment of a probationary period is regulated by Art. 70 Labor Code of the Russian Federation and Art. 71 Labor Code of the Russian Federation. But this does not mean that he works on preferential or special terms. Absolutely all norms of the current labor legislation, as well as other regulations containing labor law norms, apply to it. That is, he has all labor rights and must perform all labor duties, and can also be held accountable for violating the norms of the Labor Code of the Russian Federation.
A probationary period can only be established by agreement of the parties. That is, if one party (usually a future employee) did not know about the establishment of the test or was not properly notified, this is considered a gross violation of the norms of the Labor Code of the Russian Federation.
Therefore, the employer must notify his future employee that he intends to set a certain period for checking his professional suitability. The duration of the period must be announced. The applicant does not have to agree! But he may offer the future employer another term. When the parties come to a mutual agreement, they sign an employment contract, which specifies the duration of the tests for a specific applicant.
The duration of the probationary period is not an essential condition of the employment contract, that is, without this clause the contract will be valid. In addition, if during the labor relationship the parties agreed that the test period needs to be changed, then they can sign an additional agreement and include this provision in it.
Based on the signed employment contract or additional agreement, an order is issued, which also reflects the duration of the probationary period. If such conditions are absent, the employee is considered accepted without a probationary period.
Working conditions during the probationary period should not be worse than after its completion. This right to the employee is guaranteed by Art. 70 Labor Code of the Russian Federation. In addition, a real employment contract is immediately concluded with the employee, and not for the duration of the test. An employer cannot conclude a fixed-term contract on such a basis as during the probationary period, since this is not the basis for concluding a fixed-term contract. This is a violation of current legislation.
The same situation applies to wages. It should not be less than what other employees receive in a similar position and with the same work experience as the new employee. That is, the employer does not have the right to stipulate in the employment contract one amount of remuneration for the duration of the trial, and then another amount.
But employers found a way out of this situation without violating the norms of the Labor Code of the Russian Federation. They set low salaries for all employees, regardless of position, qualifications and work experience. And then they pay their employees monthly bonuses, taking these facts into account. Therefore, an employee on a probationary period, as a rule, receives less than other employees.
It is possible to carry out dismissal during a probationary period according to a simplified scheme, regardless of who is the initiator - the employee or the employer. If one of the parties comes to the conclusion that this employment relationship is impossible, then the employment contract is terminated without the participation of the trade union organization and payment of severance pay.
To whom the probationary period does not apply
The law establishes a certain circle of persons to whom a probationary period cannot be applied as a measure of professionalism. The circle of such workers is defined in Art. 70 Labor Code of the Russian Federation. These include:
- applicants who are accepted for a vacant position based on the results of a competition;
- pregnant women, with the appropriate certificate, and persons who have a child under the age of 1.5 years;
- minor applicants;
- applicants who are university graduates and who get a job for the first time within 1 year after graduation;
- applicants who are intentionally elected to a given position;
- employees with whom an employment contract is concluded due to a transfer from another employer, if there is an appropriate agreement between these employers;
- applicants who enter into an employment contract for a period not exceeding 2 months;
- applicants of other categories, which are prescribed in other, more “narrow” regulations.
In relation to these employees, the employer does not have the right to apply tests when applying for a job.
Exceeding the probationary period
The maximum duration of the probationary period, according to current legislation, is 3 months. That is, the employer does not have the right to check the professionalism of his employee beyond this period.
But there are several categories of employees for whom the probationary period should not exceed the time limit strictly established by law. Therefore, the employer must first determine whether his new employee belongs to this category or not, and only then set tests for him for a certain period.
A probationary period of no more than 6 months is established for:
- the head of the enterprise, as well as for his deputy;
- head of a branch, representative office, structural unit;
- chief accountant and his deputy.
The probationary period cannot exceed more than 2 weeks for applicants:
- concluding an employment contract for a period of 2 months to six months;
- working in seasonal jobs.
Tests for a period of 3 to 6 months are established:
- for civil servants who are hired for the first time;
- for persons who are transferred to the public service for the first time.
In more “narrow” regulations governing the activities of various categories of workers, other testing periods may be established. Therefore, if an employer is guided by such regulations to conduct its activities, then it must take this into account when hiring new employees.
If the probationary period is specified in the employment contract and does not exceed the duration established by law, then it can be changed. The manager has the right to shorten the probationary period of his employee without compelling reasons, but he has no right to increase it.
However, there are periods of work that are not included in the employee’s probationary period, that is, they actually increase the probationary period for a particular employee. These are time periods such as:
- a period of illness, that is, the employee can justify his absence with a certificate of incapacity for work;
- administrative leave, that is, leave when the employee does not retain his salary;
- study leave, that is, absence from work due to training;
- the employee is engaged in public works or performs government duties;
- absence of an employee from his/her workplace for other valid reasons.
In fact, these periods extend the probationary period of a particular employee, although there are no changes to the employment contract.
The probationary period applies to a fixed-term employment contract
You can conclude either a fixed-term employment contract with an employee or a contract with a specified duration. This point is reached by agreement of the parties. The duration of the employment relationship must be specified in the employment contract. A probationary period can also be applied to such an employee, but with some nuances.
A fixed-term employment contract can only be concluded in certain cases. These are cases such as:
- for a period of no more than 5 years;
- an employee is hired to perform a certain amount of work when the exact completion date of such work cannot be determined. This should be stated in the employment contract;
- temporary absence of another employee. An often common case is an employee’s maternity leave;
- performing seasonal work. For example, harvesting or sowing.
In other cases, the employment contract is concluded for an indefinite period.
With a fixed-term employment contract, the duration of the trial is also established by agreement of the parties, as with an open-ended contract. The general test conditions apply. The period for checking a new employee cannot exceed 3 months. But if a new employee is hired for a period of 2 months to six months, then the employer cannot set a verification period of more than 2 weeks. This situation arises when an employee, for example, is hired to perform seasonal work.
If an employee is hired for a period that does not exceed 2 months, then the employer does not have the right to set a probationary period. If the employer insists on this, then he violates the basic labor rights of this employee.
Instructions
First of all, the Labor Code stipulates restrictions established for certain categories of workers who cannot be hired on a probationary period. These include pregnant women and those who have children under the age of one and a half years, as well as minor citizens and young professionals - graduates of professional educational institutions. In this case, the citizen applying for a job is obliged to provide the employer with documents confirming his status.
Particular attention should be paid to young professionals. A probationary period for them may not be established or specified in the employment contract only if a number of conditions are met. So, after graduating from an educational institution, no more than a year should pass and the vacancy for which the employee applies must correspond to the specialty that he received at the university. In addition, the educational institution must have state accreditation, and the employee’s work book must not contain entries indicating that he has already acquired production experience in his specialty. The HR department employee must check that the letter of the law has not been violated, because otherwise, according to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, an administrative fine may be imposed on an enterprise or its activities may be suspended.
In accordance with Article 70 of the Labor Code of the Russian Federation, the maximum duration of the probationary period is set at 3 months; the employer has the right to reduce it or even extend it if it is set for a shorter period in the employment contract. True, in the second case, this will require the employee to sign the consent, because the probationary period and its duration are essential conditions of the initially signed employment contract.
Registration of a probationary period should not be limited only to the inclusion in the employment contract of a record of its establishment. In order for the employer to remain able to dismiss an employee who fails the test, this condition and its duration must also be reflected in the employment order. In addition, special tasks must be developed for the employee that he must cope with. Their fulfillment or non-fulfillment must also be documented in separate acceptance certificates.
If the employee does not pass the test, the employer must monitor the end of the test period in order to notify the employee of the upcoming dismissal in writing three days before. In the case where the employee has completed the probationary period, it is not required to formalize it with any special order or entry in the work book. According to Article 71 of the Labor Code of the Russian Federation, if after the end of the test the employee continued to perform his job duties, he is automatically considered to have passed the test.
Only lazy employers do not currently establish a probationary period for employees. Even if its use is unlawful, the employer, just in case, prefers not to remove it from the standard form of the employment contract. At the same time, only a few have learned to correctly use this condition for parting with employees.
The possibility of establishing a test when hiring is provided for in Art. 70 Labor Code of the Russian Federation. Testing, according to this article, means checking an employee to determine his compliance with the assigned work.
Test Establishment Basics
When fixing the condition of a probationary period in an employment contract, you should remember the restrictions and prohibitions defined by the Labor Code of the Russian Federation. Thus, a hiring test is not established for (Part 4 of Article 70 of the Labor Code of the Russian Federation):
— persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
— pregnant women and women with children under the age of one and a half years;
- persons under the age of eighteen;
— persons who have received secondary vocational education or higher education in state-accredited educational programs and who are entering work for the first time in the acquired specialty within one year from the date of receiving vocational education at the appropriate level;
— persons elected to an elective position for paid work;
— persons invited to work by way of transfer from another employer as agreed between employers;
— persons concluding an employment contract for a period of up to two months;
- other persons in cases provided for by the Labor Code of the Russian Federation, other federal laws, and a collective agreement.
If a probationary period, in violation of the prohibition, is established by an employment contract, then it should be borne in mind that the probationary condition will not be applied, and the dismissal of an employee on the basis of an unsatisfactory test result (Part 1 of Article 71 of the Labor Code of the Russian Federation) in the described situation will be recognized by the court illegal.
In addition, it should be remembered that the law establishes restrictive (maximum) test periods (Parts 5 and 6 of Article 70 of the Labor Code of the Russian Federation):
- three months for all employees,
— six months for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations (unless otherwise established by federal law),
- two weeks - when concluding an employment contract for a period of two to six months.
At the same time, the period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.
The absence of a test clause in the employment contract means that the employee was hired without a test (Part 2 of Article 70 of the Labor Code of the Russian Federation). In the case where an employee is actually allowed to work without drawing up an employment contract (Part 2 of Article 67 of the Labor Code of the Russian Federation), the probationary condition can be included in the employment contract only if the parties formalized it in the form of a separate agreement before starting work. The literal interpretation of this norm does not allow an employer who “forgot” to establish a probationary period to establish it by an additional agreement to the employment contract already in the process of employment relations.
FYI.During the probationary 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 (Part 3 of Article 70 of the Labor Code of the Russian Federation). The literal interpretation allows us to draw an unambiguous conclusion: the amount of wages cannot be reduced during the probationary period. In fact, violation of this rule is allowed by most employers.
Registration of test conditions
Drawing up the test conditions itself does not present any particular difficulties. The text of the employee’s employment contract should include the following provision: “...The employee is given a probationary period of three months.”
The inclusion of this phrase in the employment contract provides certain benefits to both parties to the employment relationship. This allows the employer, before the expiration of the test period, to terminate the employment contract with the employee if the test result is unsatisfactory in the manner prescribed by Part 1 of Art. 71 Labor Code of the Russian Federation.
FYI.During the probationary period, the employee is subject to all the norms of the Labor Code of the Russian Federation, including any grounds for dismissal provided for by the Labor Code of the Russian Federation and suitable for the specific current situation. That is, an employee can be fired for absenteeism (subclause “a”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation), and due to staff reduction (clause 2, part 1, article 81 of the Labor Code of the Russian Federation), and for other reasons .
An employee, if there is a probationary clause in the employment contract, will be able to notify the employer of his dismissal within a shortened period. So, if during the probationary period he comes to the conclusion that the work offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, warning the employer about this in writing three days in advance (and not two weeks in advance, as this is required by Article 80 of the Labor Code of the Russian Federation upon dismissal at one’s own request).
Please note that the reason for dismissal is stated as general - “at one’s own request”. The fact that the work did not meet the employee’s expectations can be kept silent. In any case, a notice period of three days rather than two weeks will apply.
Registration of termination of an employment contract
With registration of dismissal on the basis provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation - as a result of an unsatisfactory test, many employers have problems. To minimize the risk of dismissal being declared illegal on the above grounds, we will go through all the stages of this procedure together.
For convenience, consider the following situation.
A new employee was hired at the company, and an employment contract was concluded with him on February 17, 2014. According to the terms of the employment contract, the employee must begin work on this day. The employment contract provides for a probationary period of three months. According to the new employee’s immediate supervisor, the level of knowledge, skills, and attitude to work do not meet the employer’s requirements. This official reported this to the director of the enterprise at a planning meeting on April 30, 2014 and proposed to initiate a dismissal procedure as a result of an unsatisfactory test result. At the same time, the employee’s manager explained that the new employee was absent from work from 03/13/2014 to 03/17/2014 due to illness (a certificate of incapacity for work was presented).
1. We count the deadlines
First you need to find out the end date of the probationary period. Under the conditions of the situation under consideration, the last day of the probationary period falls on 04/12/2014. However, due to the employee’s absence from work from 03/13/2014 to 03/17/2014, the test period must be extended by five calendar days, that is, until 04/17/2014.
Having established the end date of the probationary period, we determine the last date on which the employee must be given notice of an unsatisfactory test result. In accordance with Part 1 of Art. 71 of the Labor Code of the Russian Federation, notification should be submitted no later than three days before the end of the probationary period.
According to Art. 14 of the Labor Code of the Russian Federation, the period of time with which the Labor Code of the Russian Federation associates the emergence of labor rights and obligations begins with the calendar date that determines the beginning of the occurrence of these rights and obligations. The period of time with which the Labor Code of the Russian Federation connects the termination of labor rights and obligations begins the next day after the calendar date that determines the end of the labor relationship. Terms calculated in years, months, weeks expire on the corresponding date of the last year, month or week of the term. The period calculated in calendar weeks or days also includes non-working days. If the last day of the period falls on a non-working day, then the end of the period is considered to be the next working day following it.
In our situation, the last day to serve notice of upcoming dismissal will be 04/14/2014.
Question. Is it possible to begin the procedure for dismissing an employee before the end of the probationary period if the employer comes to the conclusion that the employee did not complete the probationary period?
Start the dismissal procedure under Part 1 of Art. 71 of the Labor Code of the Russian Federation as a result of an unsatisfactory test result is possible at any time. However, it should be borne in mind that by that time a sufficient amount of documented evidence should have been collected that the employee did not pass the test.
2. We collect evidence of an unsatisfactory test result
Such grounds may include reports/memos from the manager and other services, acts of internal investigations of employee misconduct, acts of inspections recording erroneous actions of the employee, and other written evidence.
3. We issue a notification
The notification should clearly and clearly describe the reasons why the test result was found unsatisfactory (Example 2).
delivery
JSC "Speed Delivery"
N. A. Kozlova
Moscow, st. Pirogova, 7, apt. 24
Notification
Dear Nikolai Alexandrovich!
We notify you that the test result established by clause 2.5 of the employment contract concluded between you and OJSC “Speed Delivery” on February 17, 2014 (No. TD-14) was recognized by the employer as unsatisfactory for the reasons stated below.
In accordance with the official investigation report dated March 25, 2014, based on the results of an inspection during the period of your work from February 17, 2014 to March 24, 2014, a violation of clauses 4.1 and 4.1.2 of the Rules for the delivery of items to addressees, approved by order dated October 7, 2011 N 417, was revealed, and clause 3.1 of the job description of the leading specialist of the delivery department, approved on October 30, 2012, namely: the shipment dated February 25, 2014 N 41 was delivered to the addressee 14 hours late, the shipment dated February 26, 2014 N 54 was delivered 2 hours late, departure dated 03/06/2014 N 62 was delivered 4 hours late.
Due to the unsatisfactory result of the test, the management of High-Speed Delivery OJSC made a decision to terminate your employment contract dated February 17, 2014 No. TD-14 under Part 1 of Art. 71 of the Labor Code of the Russian Federation (if the test result is unsatisfactory) 05/16/2014.
I notify you that before the date of dismissal (05/16/2014) you retain the right to terminate the employment contract at your own request.
Director of OJSC "Speed Delivery" Smirnov N. A. Smirnov
If the employee refuses to sign the receipt of the notification (or refuses to read it), it is necessary to draw up a report about this (Example 3).
Open Joint Stock Company "Speed Delivery"
Act
| 12.05.2014 | N 15 |
Moscow
On refusal to put a signature on the acquaintance
We, the undersigned: director Smirnov N.A., deputy director Tkachev E.N., chief accountant Nosov N.S., head of the personnel department Ivanova N.K., have drawn up this act on the following:
Today, May 12, 2014, at 12:30 p.m. in the office of the director of High-Speed Delivery OJSC, N.A. Smirnov, the leading specialist of High-Speed Delivery OJSC, N.A. Kozlov, was presented with a notice dated 12.05 for review and signing upon receipt. 2014 N 45 about unsatisfactory test results. After familiarization, Kozlov N.A., in the presence of all the undersigned officials, signed in receipt of the specified notification and refused to sign for familiarization with it.
Smirnov N. A. Smirnov
Tkachev E. N. Tkachev
Nosov N. S. Nosov
Ivanova N.K. Ivanova
4. We give the employee a choice
In most cases, upon receiving such notice, employees write a letter of resignation of their own free will. The law does not prohibit, if there are several grounds for dismissal, choosing one of them, including dismissing an employee on his own initiative.
Question. The employee was given a notice of unsatisfactory test result on the verge of deadlines. Immediately after reading it, he wrote a letter of resignation of his own free will, but indicating the deadline for dismissal in two weeks, as provided Art. 80 Labor Code of the Russian Federation. However, the date of dismissal will already go beyond the probationary period. How to protect yourself from the risk of an employee withdrawing his application for dismissal immediately after the end of the probationary period?
You can only protect yourself from such a tricky turn of the situation:
- asking the employee to rewrite the application indicating the date of dismissal, which is included in the probationary period;
— by terminating the employment contract by agreement of the parties on the “required” date;
- by terminating the employment contract on a previously planned basis, provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation, on the date specified in the notice, despite the presence of the employee’s resignation letter.
5. Formalize the dismissal
The dismissal procedure in this case is standard.
Step 1. On the day of dismissal, you must issue a dismissal order (the project can be prepared in advance).
FYI.You have the right to use the unified form N T-8, approved by Decree of the State Statistics Committee of the Russian Federation dated 01/05/2004 N 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment.” Despite the fact that from 01/01/2013 the unified forms are no longer mandatory for use, they provide the greatest information content and for many employers remain the most convenient due to their versatility and familiarity. However, do not forget that they must be approved by order of the company.
Step 2. Then the employee must be familiarized with the order under his personal signature or an appropriate entry must be made on the order (instruction) in the case where the order to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under his signature (Part 1 of Article 84.1 Labor Code of the Russian Federation).
Step 3. Make a full settlement with the employee in accordance with the settlement note (Article 140 of the Labor Code of the Russian Federation).
Step 4. Issue to the employee copies of documents, including a 2-NDFL certificate, if there is his application, a certificate of the amount of earnings for the two calendar years preceding the year of termination of work (clause 3, part 2, article 4.1 of the Federal Law of December 29 .2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”). The certificate form was approved by order of the Ministry of Labor of Russia dated April 30, 2013 N 182n.
Step 5. Record the dismissal in the work book. According to Art. 84.1 of the Labor Code of the Russian Federation, an entry in the work book about the basis and reason for termination of the employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law and with reference to the relevant article, part of the article, paragraph of the article of the Labor Code of the Russian Federation or other federal law.
Step 6. Complete the remaining personnel documents to record labor relations:
— employee’s personal card (most employers continue to use the unified form N T-2). It is necessary to obtain the employee's signatures on the card in certain places provided by the form;
— notice of termination of the employment contract (dismissal), sent to the military registration and enlistment office within two weeks from the date of dismissal. The employee’s signature is not required on it (Methodological recommendations for maintaining military records in organizations, approved by the General Staff of the Armed Forces of the Russian Federation dated April 11, 2008).
Step 7. Issue a work book to the employee. The issuance is carried out under the personal signature of the employee, indicating the date of receipt in the journal of the movement of work books and inserts in them (Example 5). The form was approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions for filling out work books.”
Appendix No. 3
TO Resolution Ministry of Labor of Russia dated October 10, 2003 N 69
Book of movement of work books and inserts in them
| N p/p | Date of hiring, completion of the work book or insert in it | Last name, first name and patronymic of the owner of the work book | Series and number of the work book or its insert | Position, profession, specialty of the employee who handed in the work book or for whom the work book or insert in it was filled out | Name of the place of work (indicating the structural unit) where the employee was hired | Date and number of the order (instruction) or other decision of the employer on the basis of which the employee was hired | Signature of the responsible person who accepted or filled out the work book | Received for completed work books or inserts in them (rub.) | Date of issue of the work book upon dismissal (termination of the employment contract) | Employee's signature when receiving a work book | ||
| Number | Month | Year | ||||||||||
| 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 |
| 1 | 09 | 01 | 2014 | Kulikov Anton Vladimirovich | Series - TK-IV, N 2457454 | Specialist | 09.01.2014 | Signature | ||||
| 2 | 09 | 01 | 2014 | Nazaridze Turam Davidovich | Series - TK-II, N 5574322 | Leading specialist | JSC "Speed Delivery", delivery service | 09.01.2014 | Signature | |||
| 3 | 17 | 02 | 2014 | Kozlov Nikolay Alexandrovich | Series - TK-IV, N 8604301 | Leading specialist | JSC "Speed Delivery", delivery service | 17.02.2014 | Signature | 150 | 16.05.2014 | Kozlov |
If it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for it or agree to send it by mail. From the date of sending the specified notification, the employer is released from liability for the delay in issuing the work book (Article 84.1 of the Labor Code of the Russian Federation).
Mistakes when terminating an employment contract
An analysis of practice has shown that the main mistakes in dismissal on this basis are:
1) failure to comply with the warning period or lack of warning at all. The employer must notify the employee of termination of the employment contract on this basis no later than three days in advance;
2) failure to comply with the written form of the warning;
3) ignoring the legislator’s requirement to indicate the reasons that served as the basis for recognizing this employee as having failed the test. The employer's statement about an unsatisfactory test result cannot be unfounded; it must be supported by documents;
4) incorrect classification of actions/inactions as the reason for the employee’s unsatisfactory test result. For example, if you hired a driver without including in his duties washing the entrusted car, then his failure to perform this function in no case can be regarded as evidence of an unsatisfactory test result;
5) termination of the employment contract on the above grounds after the expiration of the probationary period.
All specified requirements for registration are provided for in Part 1 of Art. 71 Labor Code of the Russian Federation. Despite this, the number of employers forced to reinstate employees dismissed in violation of these requirements is not decreasing.
Judicial practice. An employee dismissed under Part 1 of Art. 71 of the Labor Code of the Russian Federation, was reinstated by the court. Considering the case, the court came to the conclusion that the defendant did not comply with the dismissal procedure, and did not indicate specific reasons that served as the basis for recognizing the employee as having failed the test, which is a gross violation of labor legislation. The right to evaluate the employee’s test results belongs to the employer, who during the probationary period must determine the employee’s business and professional qualities. Therefore, when dismissing an employee as having failed the test, the obligation to prove the fact of his unsatisfactory work rests with the employer.
However, the defendant did not provide sufficient and convincing evidence to confirm the facts set out in the annex to the employee’s notification about the unsatisfactory test result. It does not follow from the evidence presented how the plaintiff’s level of professionalism and the quality of her performance of her duties were assessed. According to the court, the defendant did not provide evidence convincingly indicating that the plaintiff was improperly fulfilling her official duties. Thus, the court came to the correct conclusion that there were no grounds for deeming the employee’s test results unsatisfactory (ruling of the St. Petersburg City Court dated October 14, 2013 N 33-15722).
* * *
It should be remembered that upon dismissal under Part 1 of Art. 71 of the Labor Code of the Russian Federation, the most important thing is compliance with the dismissal procedure. Moreover, it will be legal only if there is evidence of unsatisfactory test results for the employee.
Even if the employer tries to comply with all the requirements of the law, as practice shows, he is not immune from the reinstatement of the employee. If the court establishes specific circumstances, the court may conclude that the employer violated the dismissal procedure, despite the fact that the employee’s actions may show signs of abuse of rights (for example, silence about the presence of an illness and an open sick leave).