The probationary period in an employment contract is an important period for the employee and for the employer. Whether cooperation will be successful and mutually beneficial largely depends on the results of the first months of work. To ensure that the separation is not bitter, time is provided to test professional skills and abilities. It is important to correctly formalize the conditions of the test and not make mistakes when dismissing.

What you need to know about employee testing

First, you need to understand when the law prohibits the use of probationary periods when concluding an employment contract (EA). The categories of such persons are defined by Art. 70 Labor Code of the Russian Federation. For them, you can use a sample employment contract without a probationary period; it adds the phrase “without a probationary period.” So, there is no hiring test for the following categories of citizens:

• persons under the age of 18;
• pregnant women and women with children under 1.5 years of age;
• elected by competition, if the position is elective;
• graduates entering work for the first time in their specialty within a year from the date of graduation;
• persons accepted by transfer from other organizations;
• temporary workers with a contract of up to 2 months.

The verification of professional qualities can take up to six months if a chief accountant, the head of an organization, a branch or his deputy is hired (Article 70 of the Labor Code of the Russian Federation). In other cases, it is impossible to test an employee for more than three months.

A regular contract with a trial period of 3 months, which is most common, differs from a standard contract only in the presence of a clause on the trial period. You can also include conditions under which the trial period will be considered successfully completed.

How to extend the probationary period

Extension of the probationary period under an employment contract is prohibited by the Labor Code. But what if a short trial period was initially set, can it be extended? There is no clear answer to this question. On the one hand, the Labor Code of the Russian Federation does not provide for such a possibility, because the inspection period is established only when concluding a TD (Parts 1, 2, Article 70 of the Labor Code of the Russian Federation). But at the same time, information about the test refers to the additional conditions of the TD (Parts 1, 2 of Article 70 of the Labor Code of the Russian Federation), and they can be changed by concluding an additional agreement of the parties.

The most practical approach would be to conclude an employment contract with a probationary period for a maximum period. If the first months are successful, it can be reduced. This is easier to do than to increase it. Here is an example of the wording:

A TD was concluded with the seller Vorobyov, the trial period is 3 months. During the work, the parties agreed to reduce the inspection time to 2 months and signed an additional agreement to reduce this period.

This method does not worsen the employee’s situation and is therefore acceptable in practice. Extending the verification period is not the best option; it is safer to immediately set its maximum duration and, if necessary, reduce it.

Dismissal during probation period

The point of establishing a temporary trial is to check the professional qualities of the employee, and if they do not meet expectations, dismiss him without unnecessary problems and restrictions. Some employers resort to a trick and conclude a separate special TD for this period. In essence, this is a fixed-term contract that does not have any legal basis for its urgency. But in this case, the duration of the inspection may be much longer than that allowed by law. This is a violation, and if such a fact becomes known to the regulatory authorities, the employer will be punished.

Dismissal during the probationary period must be properly prepared at the start of the employment relationship. To avoid appealing dismissal in court, you need to draw up a specific work plan for the first months during employment and bring it to the attention of the candidate:

• formulate and assign tasks to the employee;
• determine the dates by which the employee must acquire knowledge and skills;
• appoint someone responsible who will check and document the success of the newcomer;
• hand over the document to the new employee for signature.

When termination of a TD is initiated by the employer, the employee is given a notice of unsatisfactory performance, indicating the reasons. The notice period for dismissal is defined in Article 71 of the Labor Code of the Russian Federation and is only 3 days. Often, employers comply with the employee’s request to formalize his dismissal at his own request, since he does not want to have a record of dismissal in his work book under Part 1 of Art. 71 of the Labor Code of the Russian Federation, that is, he does not want to admit his professional unsuitability to other possible employers. When agreeing to this, it should be understood that the employee can change his mind and challenge the dismissal in court, even if it was made “on his own.” In this case, such wording can be harmful; the court will recognize a violation of the dismissal procedure, and the negligent specialist will be reinstated in his previous position. In addition, he will have to pay him compensation for forced absence. Therefore, it is better to draw up all documents about the employee’s performance as it actually happened and not enter into any dubious transactions.

The first three months of work, in addition to the difficult adaptation period, give the employee the opportunity to quit without working within 3 days after writing a letter of resignation if the job did not suit him or he could not cope. In the case when the TD is terminated by an employee, it is enough for him to write a letter of resignation of his own free will. The employer has no right to retain an employee for more than three days.

End of trial period

When the newbie's test comes to an end, the question arises: how to formalize its successful completion and transfer the employee to a permanent job? You can do it in two ways:

• draw up an order or conclusion on successful completion of the probationary period;
• do not fill out any additional documents.

Temporary contract and probationary period

A contract concluded for a certain period is called a fixed-term contract. When concluding it, it is important to remember the test time limits. If a temporary employment contract has been signed with an employee, a sample for a probationary period (given in the appendix) shows that if the duration of the labor contract is up to 2 months, it is impossible to set a time for testing the employee’s knowledge and skills.

If an employee is hired under a temporary contract concluded for a period of 2 to 6 months, then the probationary period is set for a period of no more than 2 weeks.

Fixed-term employment contracts concluded for a longer period - from 6 months or more - may have the same probationary period as regular, open-ended employment contracts, that is, from one to three months. The same rule applies to TD for individual entrepreneurs. The test time clause is included directly in the text of the contract.

An employment contract is a special agreement that is concluded when applying for a job with the consent of the employer. The employment contract specifies the employee's obligations, salary, rights and responsibilities.

This document is mandatory as confirmation of cooperation.

Such an agreement is drawn up in several copies, which are confirmed by the signatures of the parties, as well as using the seal of the company providing employment.

The document is concluded with a person who has reached 16 years of age.

But there are other options:

• if, by agreement, work is assigned that does not pose a threat to health, then a 15-year-old child has the right to sign the document, and with the consent of the parents - 14 years old;
• an employment contract for creative activities can be concluded with a child of any age, but only with the consent of the parents.

It is necessary to carefully monitor the drafting of an employment agreement, since certain conditions provided by the organization may be unacceptable to the employee.

Employment contract form for 2019

Drawing up a contract is a procedure that requires special concentration. In case of controversial issues, this document will be the main evidence that the claims of one of the parties are absolutely justified.

Therefore, the document must be drawn up correctly, and all the conditions of both parties are fully spelled out and legally certified.

The document must contain the following details:

1. Last name, first name and patronymic of the person and employer, confirmation of the employee’s identity.
2. The date at the time of signing the document, the place where the agreement is concluded.
3. The employee’s responsibilities, namely: his workplace, work schedule, as well as requirements for the employee.
4. Career start date.
5. Guarantees for the provision of certain services under dangerous or harmful working conditions.
6. Salary size.

When drawing up a contract, it is imperative to check the document for the presence of illegal terms or violations of human rights. The name of the company, as well as its details, must be written down in full.

Sample employment contract with an employee for 2019

In 2018, the contract is drawn up in two copies, one is kept by the employing person. It must contain the employee’s signature confirming that he has a second copy of the document.

When drawing up an agreement, it is important to focus on the following aspects:

1. Be sure to pay attention to the section of rights and obligations, since any minor detail in the design can lead to bad consequences.
2. Also, the contract must describe working conditions that are not general, that is, specific, if any.

Drawing up a standard employment contract in 2019

There are no required forms when drawing up an employment agreement. Although usually the organization providing the work has its own template, which is filled out by the employee.

A person is considered an employee of an enterprise when he puts his signature on the appropriate section of the document. After this, the company enters information into the person’s work book and also prints an order for his appointment.

The employee begins his duties on the date specified in the contract. If the date is not specified, then the official start date is the day after the forms are signed. If this condition is violated, the employment contract is canceled.

The employee is also required to provide the company with the following documents:

1. Passport.
2. Work book.
3. Insurance document.
4. Military ID (if available).
5. Diploma of education, as well as documents confirming qualifications.
6. Certificate of good conduct (if required).

The company has no right to require any other documents.

Mandatory clauses of the 2019 employment contract

Some clauses of the employment agreement are required to be included in the document, with the exception of details that are legally certified and confirmed by special documents. All these conditions are discussed in detail in the table:

Contract clause	Description
Place of work	In the case of employment in a branch - the name of the parent unit, its location.
Wage	Detailed terms of calculation and salary amount.
Specific type of activity.	Full requirements of the organization for the level of education of the employee, as well as an indication of the full requirements that are provided to the employee.
Operating mode	A complete description of the time that the employee must spend on performing duties and the time allocated to him for rest (if the regime differs from the generally accepted one).
Special conditions	Safety guarantees and additional rights in case of dangerous and harmful working conditions.
Working conditions	Description of working conditions of the workplace.
Special nature of the work	Description of the employee’s responsibilities, for example, the need for business travel.
Insurance	Legal description of mandatory employee insurance.

The employment document may specify additional conditions provided by the organization, if they do not violate human rights.

Types of employment contract

There are three types of employment contracts:

1. Indefinite – an agreement that does not take into account deadlines.
   The principle of its compilation is described in detail above.
2. A part-time contract is a special type of agreement when an employee is assigned to a specific place and is able to devote his free time to additional income.
3. Fixed-term contract.
   It is necessary to dwell on it in more detail, since this type has its own characteristics.

Fixed-term contract

is an agreement drawn up between an employee and an employer for a certain period. The document is concluded under the following circumstances.

If the job is temporary or seasonal:

1. an employee is hired during the legal absence of the main employee;
2. internship work;
3. if the position allows the choice of an employee for a certain period.

A nuance of a fixed-term contract is the indication of the end date of cooperation, as well as the reasons for drawing up a fixed-term contract.

A fixed-term document does not differ in form from an open-ended document, but it must contain a clause indicating the start and end dates of the document.

There are also two features of drawing up a fixed-term contract regarding the probationary period:

• a contract for a period of no more than two months should not have a trial period by law;
• in other situations, the probationary period does not exceed 14 days.

Find out when you can conclude a fixed-term employment contract from the video.

Employment contract between individual entrepreneur and employee

All relationships between the employer and his employee are regulated by the norms of the labor code of the Russian Federation. In such a situation, there is practically no difference between the party hiring the employee, be it an individual entrepreneur or a huge corporation. After all, it is also important for individual entrepreneurs to formalize all relationships within the framework of the law, create the necessary conditions for work activity and subsequently comply with them.

According to the established legislation in the Labor Code of the Russian Federation, an individual entrepreneur has the right to hire employees by drawing up two types of contracts. Accordingly, this is an employment contract with an individual entrepreneur and a civil law one. Employers turn to the second type only when there is a need to perform one-time work. But, at the same time, it can be used to register an employee whose specific work does not require compliance with the established temporary work schedule, but with the accepted rules of the organization. A civil law agreement is divided into three types: contract agreement, provision of services and author's order. In turn, the employment contract itself will be drawn up with the employee applying for the main job, so he will be provided with a social package.

Unscrupulous individual entrepreneurs quite often resort to the practice of drawing up a contract with an employee applying for a permanent job. At the same time, at the legislative level, if he signed this agreement, in the event of his illness or vacation, no funds will be paid to him. The employee himself, out of ignorance, will regularly perform his duties, which fall under the main employment contract.

As already noted, this is a fairly common practice, since it allows you to save money, and in addition, it makes it possible to fire an employee if the employer is not satisfied with something. However, if the employee himself is at least somewhat legislatively literate, he can file a written complaint with the labor inspectorate, which will subsequently result in big problems for such an individual entrepreneur. Also, if an audit begins, the employer will have to prove his reasons for choosing one or another type of contract.

If an individual entrepreneur wants to hire an employee for a period of up to three calendar months, then the conclusion of the employment contract itself will not be mandatory. However, if they still resort to it, then the clause on the probationary period can be reflected with the necessary time interval. Moreover, such an agreement can subsequently be terminated by notifying the employee three days in advance. During this period of time, the employer will have to make all financial contributions to social funds and pay compensation to the employee for unused vacation.

Employment contract between individual entrepreneur and seller

One of the important indicators of a profitable business is high-quality, qualified personnel. If the activity is related to sales, then the main person on whom the entrepreneur’s income depends is the seller. But choosing the right personnel is not the main thing; it still needs to be formalized.

Employment contract for a probationary period

Any manager of an enterprise has the right to individually decide whether or not to establish a probationary period. But if such a period is established, it must be formalized in an official document - an employment contract. In which a mandatory condition is a clear indication of the duration of the test, wages and other social issues. These details must be legally documented.

According to the legislation of the Russian Federation, the trial period is not intended for:

• persons under the age of majority;
• pregnant women;
• women who raise children under one and a half years old;
• persons who got a job in an organization through a competition;
• persons transferred from one specialty to another within the same company.

Registration of an applicant with a probationary period occurs on equal rights and conditions with employees who are hired for production without a probationary period. Such applicants must provide the company’s HR department with:

When hiring for a job with a probationary period, it is necessary to issue an order in which all the nuances will be recorded. Next, the employer needs to prescribe specific criteria according to which the newcomer will be assessed in the workplace. Such a negative assessment will directly in the future be proof that the new employee was unable to complete the probationary period.

If an employee was absent from work for a valid reason during the probationary period, the employer may extend the probationary period for the number of days that the employee missed.

Dismissal upon passing a test at the enterprise

Termination of an employment contract during verification of an applicant may occur on the initiative of:

• employer;
• employee.

In the first case, termination of the contract often occurs due to the low qualifications that the employee showed during the probationary period. Thus, the head of the company has the right to dismiss such a subordinate at the time of the inspection, or after its completion. But, for such an action, the director of the institution needs to document the illiteracy of this employee, since unsubstantiated facts can be appealed by the dismissed employee in judicial institutions.

And if the judicial authorities recognize him as the injured party, then the employer will be obliged to take the dismissed employee to his previous place, but without any preliminary checks.

In addition to illiteracy and low qualifications of the hired worker, the employer can terminate the employment contract with him due to:

• absenteeism (which is not confirmed by any document);
• sloppiness;
• violations of internal labor regulations.

The dismissal of an unproven employee will be legally competent if the head of the company notifies him in writing against signature three days before the actual payment, or before the end of the test inspection. Such notice must indicate the reason for dismissal with reference to the clause or article of the violated legislation.

Termination of an employment contract at the initiative of a subordinate is a legal action, and most often occurs through the fault of the employer. In order to resign of his own free will, an employee of an organization must write a letter of resignation, in which it is not at all necessary to indicate the reason for dismissal.

If you dismiss at your own request during or at the end of the probationary period, the manager legally has the right to demand work from the subordinate. The duration of which is two weeks. This feature is usually determined by agreement of the two interested parties, but if this does not happen, this issue is resolved with the help of legislative acts and lawyers.

Employment contract with the chief accountant

The legislation of the Russian Federation does not provide for the rules for drawing up this document.

An organization can develop its own form or use a sample of industry standards.

• According to the law, an agreement with a candidate for the position of chief accountant is signed for an indefinite period.
• But it is allowed to draw up a fixed-term employment contract.
• Its term should not exceed five years.
• It cannot be extended for the same period.
• When a fixed-term contract is renewed, it becomes indefinite.
• To conclude a contract with an accountant for another five years, you must first fire him and then enter into a new contract.
• At the same time, management is obliged to warn in advance in writing about the upcoming dismissal, but no later than three days before the upcoming dismissal.
• The probationary period is specified in it and should not exceed six months and depends on the duration of the contract.
• When employed for six months, the probationary period should not exceed two months.
• Absence from work due to illness is not included in the probationary period.

The list of rights and responsibilities of the chief accountant must be given in the organization’s job description and reflected in the contract. The basis is the Qualification Directory of Positions of Managers and Employees, which is of a recommendatory nature. The contract must clearly state that the chief accountant reports to the head of the enterprise.
The chief accountant's responsibility for accounting is also stipulated in the contract of acceptance for the position, unless otherwise provided by the internal regulations of the organization.
Separately, we would like to draw your attention to the fact that the chief accountant should not have double subordination (to the director and financial director at the same time).
The clause on trade secrets and its non-disclosure must be written down in the employment contract.
The manager is obliged to additionally familiarize the new chief accountant with a list of information subject to non-disclosure and responsibility for information leakage.
A liability clause may be written into the contract.

The employment contract with the chief accountant contains the following main points:

• general provisions;
• rights and obligations of an employee;
• rights and responsibilities of a manager;
• wages, social guarantees;
• work and rest time;
• liability of the parties;
• conditions for termination of the contract;
• final provisions.

The “General Provisions” section specifies the duration of the contract and probationary period, place of work and working conditions, and start of work.

The section “Rights and Responsibilities of an Employee” details the employee’s right to comply with working conditions and wages.

Responsibilities of the chief accountant for organizing the work of the accounting department, if there is one, maintaining accounting, etc.

The section “Rights and Responsibilities of the Manager” describes the responsibilities of management to provide the employee with the opportunity to perform his production functions.

The sections “Payment...” and “Working time...” contain information about remuneration, the procedure for paying wages, incentives for work, work schedule and duration of leave.

Separately, if necessary, a clause on irregular working hours and incentives for irregular working hours is prescribed.

In the “Responsibility of the Parties” section, a clause is introduced on the financial liability of the chief accountant with legal liability.

Employment contract with a driver: form and sample

The most important point in drawing up an employment contract is the place of work, since the driver does not have a specific place to perform work, since he is constantly on the road.
You can also simply indicate the object (vehicle) on which the driver works.
The work schedule is considered very important: it is also highlighted in the contract.
You should indicate all the nuances that may arise, since the driver is an unpredictable profession.
This is done so that no conflicts arise later.
It is worth considering independent property liability on a separate sheet.
This applies to all drivers, including forwarders.
To the latter, in a larger amount, since responsibility arises not only for transport, but also for the cargo.
This is confirmed by the civil code of the Russian Federation: “The forwarding driver must be responsible for the cargo that is transported.”
The code also states that he must still hand over everything according to the documents to the customer.

Most importantly, there must be two copies of the contract, one will be with the driver, the other with the employer.

Both the driver and the employer can terminate the contract.

Let's consider both cases:

1. The driver has every right to terminate the contract, but at the same time warn the director of the company or the person who hired him in writing. Reasons for leaving are often included in the statement, but this is usually not required. It is also worth remembering that after submitting a resignation letter, the employee must work for some more time. So, before the dismissal date, he can still pick up the document and continue working in the company;
2. The employer has the right to dismiss his employee in the following cases: first, if the company has problems in the market and does not have enough funds to pay for another specialist, second, if the specialist cannot cope with his direct responsibilities, third, if the employee has had many warnings, etc. But in all of the above cases, the employer is obliged to pay that part of the salary that was worked. Otherwise, legal authorities may be involved in this matter.

When the period expires, the employee, in this case the driver, must come to the director of the company and demand from him that he give out the work book and other documents that should belong to you, which you previously gave to the director.

Changing the employment contract - what you need to remember

Article 57 of the Labor Code of the Russian Federation lists the main conditions without which it is impossible to change the employment contract - if they are violated, all actions can be challenged in court. But if both parties want to make their own changes, you can change any provision of the contract - if one of the parties forces the other (more often it happens that the employer does this in relation to his employees), this can also become the reason for litigation.

First of all, in order to make changes, you should draw up an additional agreement to the contract, which is printed in several copies and signed by the employee himself and the representative of the legal entity (company).

One copy of the document is transferred to the specialist, the second remains for storage in the organization’s archives. At the same time, the copy that remains with the legal entity must contain the signature of the employee with whom the employment contract is being changed, confirming that he has a second copy. An additional agreement is an important part of the contract that regulates the relationship between the employee and his employer.

What can be changed and how to do it

The main purpose of any employment contract is to fix the conditions of activity of the company’s employees. That is why we will look at what exactly can be changed in it.

First of all, this is the work schedule. If it has any differences with what is already accepted in the company, this should definitely be written down in the employment contract. If there are any changes to the document - for example, a change in the regime schedule, they are included in the additional agreement. If the employee will carry out his activities according to the schedule adopted by the company, it is not necessary to enter data about his schedule into the contract - all the conditions are spelled out in the regulations, which you simply need to familiarize the employee with under his signature.

Another important point of the document is the salary level. The Labor Code of the Russian Federation does not allow the use of such formulations as “an employee’s earnings are determined by the staffing table” - the document must specify the salary, bonus conditions, etc. By the way, if employers refuse to do this, the future employee has the right to sue the company for violating the Labor Code of the Russian Federation.

At the same time, amendments to the contract at the initiative of the director who wants to reduce the employee’s earnings are possible if the employee agrees. Naturally, no one will do this, so many managers are cunning: they change the schedule in such a way that the employee’s earnings decrease. This is also a violation of the law and may result in litigation.

Any adjustments are made by drawing up an additional agreement, which should contain the following:

• Number and date of the document to which adjustments will be made.
• Place and date of drawing up the agreement.
• Full name of the manager and employee, their positions.

In the text we write down all the conditions for the change on which agreements were reached - for example, changes in the work schedule or salary of a specialist. This document does not have a general form, but it is better to fill it out on an official form, taking into account the company’s regulations. The additional agreement is certified with the company’s seal and the signatures of representatives.

It is important to remember: if changes to the employment contract, no matter what they were, were made without the knowledge of the employee, this leads to violations of the Labor Code of the Russian Federation, which means that the specialist has the right to appeal such adjustments.

For example, you noticed that your salary was reduced in the contract - after you file a lawsuit or the labor inspectorate, your employer will be forced to restore your wages, pay the difference and pay the interest accrued for the delay.

Before making changes to the terms of the contractual relationship, the employer must warn the employee about the upcoming procedure. This must be done in writing, within the period specified by law.

The general provisions of the Labor Code state that it is possible to change the terms of employment contractual relations only with the consent of both parties. But, art. 74 of the Labor Code includes some exceptions. The employer must warn the person about changes in the essential terms of the contractual relationship for organizational or technical reasons. Therefore, it is allowed to make changes to the current contract:

• at the initiative of the employee, with the consent of the employer;
• due to changes in organizational and technical working conditions.

But, with the latter option, the company’s management must prove the impossibility of working under the same conditions as before. It is obliged to notify hired personnel in writing about the changes, indicating the reason that led to them.
The head of the enterprise must notify the employee about upcoming changes within the following time frame:

• for enterprises 2 months before changes are made;
• entrepreneurs and other citizens must do this within 2 weeks;
• Religious organizations are required to notify employees of upcoming changes one week in advance.

There is a general procedure for notifying employees:

1. Employees are given written notice of upcoming events no later than two months in advance.
2. It is presented in person against signature or sent by mail. This document must specifically describe the essence and reasons for the current circumstances. The notification must also contain all vacancies for the possibility of transfer. An employee who refuses the transfer is subject to dismissal.
3. If he is not against changing working conditions, he must give written consent.
4. The next step is to issue a corresponding order for the enterprise.
5. An additional agreement is drawn up indicating all changes.

When the essential terms of the contractual relationship change, the employee is notified accordingly. Such changes do not require the employee's consent. Within two months, the employee must agree to the upcoming procedure or resign. The employer may provide the person with another vacant unit. But, usually, there are no such places, and a person is forced to simply quit if he does not agree with the changes made to the employment contract.

It is worth noting that this situation is extremely convenient for the head of the enterprise. However, he is not obliged to pay compensation upon liquidation. When dismissing people under this article, the company is obliged to pay severance pay within three months. Therefore, quite often employers disguise layoffs as changes in essential conditions.

If such a situation arises, the hired worker has the right to file a claim in court and demand a change in the grounds for dismissal, as well as pay redundancy benefits. But, it should be taken into account that the plaintiff will have to provide evidence that the reason for the dismissal was precisely organizational or technical conditions.

As a rule, these concepts mean the abolition of branches or the creation of a new enterprise that requires more qualified employees. Practice shows that judges generally take the side of the employee and force the enterprise to pay compensation payments, as well as change the article of dismissal.

Responsibility for violation of the requirements of the employment contract

An employment agreement is drawn up to protect the rights of a person when hiring. If the provisions specified in the employment agreement are violated, certain liability follows. Depending on the type of violation, the fine for abuse of one’s position can reach up to 200 thousand rubles.

Responsibility may be:

1. Criminal - occurs in the event of dismissal of a pregnant woman or a woman who has a child under 3 years of age, and in the event of non-payment of wages to them.
2. Material – for late payment of wages or vacation pay.
3. Administrative – any violations on the part of the employer of legally correctly executed clauses of the relevant documents.
   Administrative liability arises most often.
4. Legal – arises for causing various types of moral and physical harm.

The person who violates the contract will bear some responsibility, but for this, the second party, that is, the employee, must report the violation to the relevant institutions.

Thus, the employment contract must be drawn up in compliance with all formalities.

Compliance with the rules of the agreement guarantees fruitful cooperation that will suit the employee.

The form must include a description of working conditions and the start and end dates of cooperation. Liability is provided for violation of the conditions.

You can learn how to conclude an employment contract from the video.

In contact with

The interests and rights of job seekers are also protected in Russia, as are the labor relations of already registered workers. One manifestation of this level of protection is the provision of a probationary period to all persons who are actively looking for work.

An employee who is on a probationary period, as well as his employer, must understand well what a probationary period actually is under a fixed-term employment contract, what requirements are imposed on it at the legislative level, what the deadlines are, the registration procedure, the drafting of clauses and other points. The most important thing is that in the employment contract for the period of testing, the parties must reflect as accurately as possible all the conditions that would fully satisfy bilateral expectations, rights and obligations.

How to extend a probationary contract

Thus, the procedure for drawing up an employment contract with employee testing should include the following points:

1. The testing period is discussed by the parties.
2. How an employee must undergo verification is determined by the employer.
3. The results of the inspection are also assessed by the employer and the conditions for conducting the assessment and recording it must also be reflected in the terms of the contract (Determination of the Moscow Court of Appeal No. 33-26307/14 of October 2, 2014).
4. The employer does not have the right to create any obstacles to the employee’s performance of his job duties.
5. The employer must take into account objective third-party interference with the work performance of the test subject before checking the work results.
6. The conditions for possible termination of the contract must be specified in a separate paragraph.

In addition to drawing up a document such as an employment agreement with a probationary period, an order must also be drawn up for the potential employee. The form of the order is the same as for the final hiring of an employee, only it indicates the period of time and conditions (the Code speaks about this in Article 68). No entries are made in the work book about the test, as stated in Instruction No. 69, a regulatory document for filling out workers’ work books, which was approved by the Resolution of the Ministry of Labor of the Russian Federation on October 10, 2003. This rule is covered in clause 3.1 of this Instruction.

Employment contract with or without a probationary period: samples

The contract with a note about employee verification, which can be easily downloaded through our website, must contain the following important points:

• The name of the document and its details – place and date of publication.
• The first paragraph, considered the preamble, contains representative information about the parties to the agreement.
• The subject of the contract must show what exactly the parties agree on and for what period.

• rights and obligations of the parties;
• liability for any violations;
• work and rest schedules;
• how labor is paid;
• under what circumstances and on what conditions the contract can be terminated;
• other conditions.
• The document ends by indicating in a column the details of the parties and their signatures.

Typically, an employment contract without a probationary period, a sample of which can be downloaded here, is concluded between an individual entrepreneur (individual entrepreneur) and an individual employee. It states practically everything the same as in the contract with the test, only a note is placed - “Without passing the test.”

How to properly terminate such contracts

In order to competently terminate the employment relationship and properly terminate the employment contract with the employee, those on probation, you need to take into account the most basic details and steps of such a procedure. In general, the algorithm of actions will be as follows:

1. A notice is issued indicating that the employee will soon be fired.
2. Such a notice is sent to the employee’s address where he lives or is given to him personally 3 days before the actual termination of the contract.
3. The notice must indicate the grounds for termination of the employment relationship so that the relationship can be terminated legally.
4. The employee must receive the notification against personal signature.
5. Upon the date of dismissal, an order is drawn up, which the employee also reads and signs.
6. Then the employee hands over all the work.
7. And at the end, the accounting department pays everything earned during the reporting period to the dismissed person.

Based on Article 71, those who quit or were fired from the probationary period are not entitled to pay any severance pay. But when a probationary employment contract is terminated, the employee must be paid compensation for not using calendar leave (Article 127 of the Labor Code). However, only those citizens who have worked at the enterprise for at least six months have the right to take advantage of such leave. Therefore, if the contract was concluded for a period of more than 6 months, then the employee will receive compensation upon dismissal. If, for example, an employment contract was concluded with a probationary period of 3 months, a sample of which is available here, then no compensation is due for unused vacation.

If the probationary employee himself considers it necessary to leave such a position, then he must notify the employer of his decision in advance. This is also done 3 days before dismissal by submitting an ordinary letter of resignation.

If an entry about the conclusion of an employment contract, in which there was a note about the probationary period, was made, then it should be closed with another entry - about the termination of the contract. The entry contains a reference to clause 3, part 1, article 77 of the Labor Code of the Russian Federation, which highlights the fact of termination of the employment agreement precisely on the initiative of the employee himself, and not the employer. We remind you that the probationary period under the employment contract itself is not written down separately in the work book.

From the point of view of the average person, the presence of a test clause in an employment contract means that the employer will probably pay less wages and may not renew the employment relationship if the test is unsuccessful. Meanwhile, the current labor legislation gives an employee who has entered into an employment contract with a probationary period additional rights and also provides certain guarantees. There is no officially approved form, as well as a sample employment contract with a probationary period, so when developing your form it is important to take into account some points.

Probationary period when concluding an employment contract

Despite the fact that the current labor legislation does not restrict the employer’s rights to impose a test on an employee when concluding an employment contract, this right can only be exercised by him upon receipt of the employee’s consent.

In addition, the right to provide for a probationary period in employment contracts is not unconditional, even if the employee’s consent is obtained, and may be limited. In particular, the legislator associates such a restriction with certain categories of workers.

The legislator prohibits an employer from concluding an employment contract with a probationary period:

• if the employee is hired for fixed-term work for a period of up to two months;
• if a pregnant woman or a woman who has children under one and a half years old is employed by the employer;
• if an employee is hired who is under 18 years of age;
• if the employee is employed by transfer, etc.

A complete list of such persons is contained in Part 4 of Article 70 of the Labor Code of the Russian Federation.

The employer should not use a sample employment contract with a probationary period with these persons. If, for some reason, a condition on probation for the specified category of workers ends up in the employment contract, then this condition is void. Which, however, does not entail the nullity of the remaining provisions of the employment contract. In addition, the employer cannot dismiss such an employee due to failure to pass the test - the courts recognize such dismissal as illegal and oblige the employer to reinstate the employee at work and pay him wages for the period of forced absence.

Employment contract with a probationary period of 3 months

The Labor Code of the Russian Federation strictly regulates the possible deadlines for establishing a test for an employee when applying for a job. It is necessary to take into account both the period for which the employment contract is concluded and the category to which the employee hired for the position may be classified.

An employment contract with a probationary period may contain the following probationary periods (parts 5 and 6 of Article 70 of the Labor Code of the Russian Federation):

• 3 months. In this case, the rule regarding the establishment of this period for all categories of employees is applicable, unless the law contains other deadlines. This period is a maximum and can be reduced by the employer;
• up to 2 weeks. A shortened probationary period is established when the parties enter into a fixed-term employment contract limited to a period of two to six months;
• up to 6 months. Such a long probationary period can be determined when hiring employees for management positions (head and deputy head of an organization, chief accountant and his deputy, head of a branch and representative office).

The hiring test is formalized in writing by including this condition in the employment contract and familiarizing the employee with the procedure for passing it.

Download a sample employment contract with a probationary period

The specifics of concluding an employment contract with a probationary period in the civil service are regulated by Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation.”

Extension of probationary period

The employer does not have the right to extend the probationary period. The regulatory body represented by Rostrud, in its clarifications, also indicates that its extension is inadmissible.

glavkniga.ru

An employment contract without a probationary period is concluded with the following categories

Employees selected through a competition to fill the relevant position.
For example, in accordance with federal law dated March 2, 2007 No. 25-FZ “On Municipal Service in the Russian Federation,” the conclusion of an employment contract with a municipal employee may be preceded by a competition. The competition itself is held with the aim of assessing the professional level of applicants for municipal service positions and their compliance with the established qualification requirements for municipal service positions. The competition for filling a municipal service position solves the problem of the probationary period in full, therefore the establishment of an additional test is unnecessary.

Pregnant women and women with children under the age of one and a half years.
This provision applies not only to women with children under the age of one and a half years. But also for other persons raising children of the specified age without a mother.

Minor workers.

Employees who have received secondary vocational education or higher education and are entering work for the first time in their specialty.
In this case, there are two additional conditions:

1. An educational organization must have state accreditation of educational programs (in this case, the graduate will have a state-issued education document).
2. A graduate of an educational organization must find employment in the specialty received within one year after graduation.

Employees elected to an elective position for paid work.
For example, a newly elected deputy of the State Duma of the Russian Federation.

Employees invited to work by way of transfer from another employer as agreed between the employers.

Employees who have entered into an employment contract for a period of up to two months.

Summarizing
An employment contract without a probationary period can be concluded with any employee; this requires only the good will of the parties to the employment relationship. By virtue of the law, a probationary period is not established at all for certain categories of employees.

Video on the topic “Employment contract without a probationary period”

prava-rabotnika.ru

Probation period according to the Labor Code of the Russian Federation

According to the provisions of Art. 70 of the Labor Code of the Russian Federation, a probationary period for an employee can be assigned taking into account the following rules:

1. The presence of mutual consent of the parties (employer and employee) to include a probationary clause in the employment contract.
2. The use of a probationary period only applies to newly hired employees.
3. Indication of such a condition in an employment contract concluded in writing. Otherwise, the employee is declared hired without a probationary period. If a person begins to perform work duties without drawing up an employment contract in writing (Article 67 of the Labor Code of the Russian Federation), a separate agreement on the conditions of the test should be signed before the employee begins working. Introducing a clause on a probationary period when subsequently drawing up an employment contract is unacceptable.
4. Extension of all provisions of labor legislation to the employee undergoing testing on an equal basis with other employees. For example, reducing the salary for the probationary period is contrary to the Labor Code of the Russian Federation, in particular Art. 22 (the principle of equal pay for work of equal value).

The test condition must be contained in the employment order (Article 68 of the Labor Code of the Russian Federation). A note about accepting a person for work with a probationary period is not entered in the work book (clause 3.1 of the Instructions for filling out work books, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69).

Duration of probationary period

The maximum maximum duration of the probationary period is 3 months, but for certain positions it can be increased to six months, unless otherwise established by federal legislation (Article 70 of the Labor Code of the Russian Federation). These positions include:

• head (and deputy head) of the organization;
• chief accountant (and his deputy);
• heads of separate divisions of the organization (branch, representative office, etc.).

For persons concluding an employment contract for a period of 2 to 6 months, there is a maximum duration of testing - 2 weeks (Article 70 of the Labor Code of the Russian Federation).

The lower limit of restrictions on the duration of probation is not established by labor legislation and is determined solely by agreement of the parties - the employee and the employer (regardless of the type of contract, which can be fixed-term or indefinite). The exception is the requirements of the legislation on civil servants.

The test conditions for persons entering the state civil service are regulated by the Federal Law “On the State Civil Service of the Russian Federation” dated July 27, 2004 No. 79-FZ. The duration of the probationary period in this case ranges from 1 month to 1 year (i.e., not only the upper, but also the lower threshold is established).

If the period allotted for testing has expired and the employee continues to work, he is considered to have passed the test for compliance with the assigned work.

Extension of the probationary period under an employment contract

The employer cannot independently decide to increase the probationary period. Labor legislation does not allow the establishment of a probationary period exceeding that regulated by Art. 70 of the Labor Code of the Russian Federation temporary restrictions, even if the consent of both parties is obtained.

The probationary period may be extended in cases where the employee was temporarily disabled or was not at work for other reasons (for example, was on leave without pay, served as a juror, etc.). In this case, the test is considered interrupted and is resumed after the subject returns to work. Thus, the end date of the probationary period fixed in the employment contract is shifted.

The total time of passing the test before the break for the specified reasons and after it should not exceed the period established by the agreement and labor legislation.

To extend the probationary period, an order of appropriate content is issued with the attachment of documents confirming the grounds for such an extension.

Probationary period for a fixed-term employment contract

The possibility of including a probationary clause in a fixed-term employment contract depends on the work for which the person is hired:

1. Seasonal work (Article 293 of the Labor Code of the Russian Federation). Taking into account the definition of seasonal work, the period of which usually does not exceed 6 months, it is prohibited to set the test duration to more than 2 weeks.
2. Temporary work. Their duration is determined by Art. 59 of the Labor Code of the Russian Federation - up to 2 months, i.e. the test in this case is unacceptable (Article 289 of the Labor Code of the Russian Federation).
3. Other works. In the case of an agreement between employer and employee for a period of 2 to 6 months, a probationary period of more than 2 weeks is not allowed.

Recording the results of the probationary period

The procedure for an employee to pass the test is not regulated by labor legislation. Assessing an employee for compliance with the work assigned falls within the competence of the employer (appeal ruling of the Moscow City Court dated October 2, 2014 in case No. 33-26307/14):

• The employer himself decides how to organize the testing of a newly hired employee. Moreover, all assigned tasks must comply with the functionality regulated by the employment contract and the job description of this specialist (decision of the Moscow City Court dated November 24, 2011 in case No. 33-38122).


• The employer must not create obstacles for the employee to fulfill his duties and take into account, when analyzing the results of his work, objective circumstances that could prevent the subject from achieving his goals, for example, failure to provide a workplace or downtime due to the fault of the employer (decision of the Savyolovsky District Court of Moscow dated 03/04/2009 No. 2-967/2009).

It is recommended that the result of passing (failure) the test be documented by the employee’s immediate supervisor in the form of a written conclusion accompanied by explanatory notes from the subject, testimonies of other employees of the organization, customer reviews and other documents (if available).

The legislation does not establish a requirement to draw up such a conclusion, but it can serve as justification for terminating an employment contract under Art. 71 of the Labor Code of the Russian Federation and can be used as evidence in the event of an appeal against the fact of dismissal by an employee in court (appeal ruling of the Kaliningrad Regional Court dated December 4, 2013 in case No. 33-5165/2013).

Dismissal during probationary period

Art. 71 of the Labor Code of the Russian Federation establishes that in the event of unsatisfactory performance of an employee on a probationary period, the employer may terminate his employment contract at any time before the end of the probationary period. In this case, the latter is obliged to properly notify the subject of the decision made:

• The notification must be in writing.
• The notice is sent at least 3 days before the date of termination of the agreement.
• This document must contain the reasons justifying the employer’s adoption of such a decision.
• The notice is announced to the employee against personal signature. If he refuses to receive this document in the presence of witnesses, a statement of refusal is drawn up, which is signed by several witnesses (employees of the organization). A copy of the notice is sent to the home address of the dismissed person by registered mail with return receipt requested. The deadline for sending is at least 3 days before the date of dismissal.

Dismissal under Art. 71 of the Labor Code of the Russian Federation, if the notification requirement is not met, it may be declared illegal by the court and lead to the employee’s reinstatement at work with the payment of compensation and payment for forced absence (see, for example, the decision of the Khabarovsk District Court of the Altai Territory dated February 12, 2009 No. 2-11/09).

Upon termination of the employment contract under Art. 71 of the Labor Code of the Russian Federation does not provide for the payment of severance pay and coordination with the relevant trade union body, but compensation for unused vacation is provided (Article 127 of the Labor Code of the Russian Federation).

If the employee himself believes that this job is not suitable for him, he notifies the employer in writing 3 days before the end of the employment relationship. In this case, an entry in the work book is made with reference to clause 3, part 1, art. 77 of the Labor Code of the Russian Federation (termination of an employment contract at the initiative of the employee).

rusjurist.ru

Legal information about the probationary period

Probation– a period limited by the employer, during which he will be able to evaluate the professional and personal qualities of a new employee, and understand whether the company needs such a person.

During the same period, the employee will be able to make a decision for himself to extend or terminate further activities at the enterprise.

Does it consist of testing the work qualities of a potential employee when hiring a potential employee?

The contract must indicate the period of validity of the inspection.

During this time, the newly hired employee is subject to all the rights prescribed in the Labor Code and in the collective agreement. Offering a lower salary during the trial period is a violation of the law.

This is stated in Article 22 of the Labor Code: for equal work there must be equal pay. The employer usually circumvents this law in the following way - does not pay a bonus during the test to the subject.

A probationary period is issued only for employees who are hired for a given place of work for the first time.

For citizens already working in this organization, this verification condition is not acceptable.

Not all new employees are subject to a probationary period. Article 70 of the Labor Code lists those categories of citizens for whom it is prohibited to introduce it.

They are the following persons:

• registered citizens in accordance with the competition for vacancies;
• women with children under 1.5 years of age and pregnant women;
• persons under 18 years of age;
• hired after graduating from special vocational educational institutions and universities for the first time within a one-year period from the date of receipt of the diploma;
• applicants for an elective position that is paid;
• transferred employees with the execution of an agreement between employers;
• temporary employees when drawing up an employment contract for up to 2 months.

For an ordinary employee, the verification period cannot last longer than three months.

For management personnel, which may include the head of a department or the chief accountant, a period of six months is established.

The lower limit is not indicated. When drawing up a contract lasting from two months to six months, the verification period should not be longer than 2 weeks. Civil servants belong to an exceptional category in terms of testing time.

They are subject to Federal Law No. 79 and a contract is concluded with them, in which the inspection period is set from 1 month to 1 year (Article 27 of Federal Law No. 79).

If during the test period the employee fell ill, took study leave or at his own expense, or was absent for any other valid reasons, the inspection time is extended by the number of days of absence.

A reduction in the duration of the probationary period is formalized by order of the manager with mandatory familiarization with the subject under his personal signature.

If during the verification period the employer is not satisfied with the performance of duties by the new employee, a decision may be made to terminate the employment contract early.

If the answer is positive about continuing work after the end of the test period, no additional orders need to be issued; it is considered that the employee has passed the test.

If the new employee makes a favorable impression on the employer, then the employer has the right to shorten the verification period.

To do this, an order is issued stating that the employee’s probation period is over, indicating the exact date.

If the condition for introducing a probationary period is not written into the agreement, then the employee began to perform his duties without additional testing.

How to draw up such an employment contract? Sample document

Upon hiring, an employment contract with a probationary period is drawn up for each employee in paper form in two copies, one of which is given to the hired employee.

Registration of the document is mandatory. It is signed no later than three days after the citizen starts working at the enterprise.

Forms of employment contracts with or without the inclusion of a probationary period do not differ from each other. An enterprise usually uses a template for such a document. It contains information about the test in the following form:

The employee is given a pre-employment test to review his suitability.

The trial period is 3 months.

This period does not include days of actual absence.

But the phrase “without a probationary period” or “the agreement is concluded for an indefinite period” may be written down.

Additional mandatory documents are attached to the employment contract establishing the inspection time:

1. job description;
2. planned output schedule;
3. list of prices for work performed;
4. agreement to maintain confidentiality of information.

Additional agreements may also be included, which are an integral part of the document and, when issued, cancel the clauses specified earlier in the agreement.

A fixed-term employment contract is concluded for a period of no more than 5 years in accordance with Article 58 of the Labor Code.

When concluding it, the employer indicates the expiration date of the contract and the reason why the contract cannot be concluded without limitation.

For example, temporary (seasonal) work (Article 293 of the Labor Code), long-term business trip abroad. But it may not be a period that is specified, but an event after which the contract will be terminated. For example, maternity leave for an employee.

After termination of a fixed-term contract, there is no need to pay severance pay.

Sample employment contract with an employee with a probationary period.

Sample of a fixed-term employment contract with a probationary period.

Sample employment contract without probationary period.

The procedure for terminating such a contract

There are several nuances here:

1. the subject is given notice in writing.
2. The document is delivered to the subject three days before dismissal.
3. The notice must indicate the reasons for termination.
4. The union's opinion is not asked.
5. No severance pay is paid in this situation.

The employee may apply to the court against such a decision.
An employee cannot be dismissed during the probationary period on the days of his actual absence for a valid reason.

If you and
the subject understands that the new job does not correspond to his ideas, he can also terminate the employment contract with 3 days’ written notice. There is no need to indicate a reason in this case.

In almost all organizations, upon hiring, the employer sets a probationary period. During this period, the parties to the employment contract take a closer look and decide for themselves whether or not to continue working together.

If there is disagreement with further activities at the enterprise, the contract is terminated within 3 days instead of the usual 14 days with a simple contract.

Also, the period is reduced for the employee if the employer decides that the subject is suitable for him.

naim.guru

Probationary period: general provisions and the number of months during which an employee can complete it

In Art. 57 of the Labor Code of the Russian Federation establishes a set of clauses, the presence of which is mandatory in the employee’s contract with the administration of the organization. Also, this article contains a set of conditions that can be included in the contract at the discretion of the parties (about the requirements for concluding an employment contract in our separate material).

Probationary period clause of Art. 57 of the Labor Code of the Russian Federation classifies it as optional. Therefore, the decision to include it in a contract with a specific employee is within the exclusive competence of the company’s management.

Art. 70 of the Labor Code of the Russian Federation indicates that if the management of an organization considers it necessary to determine a probationary period for an employee, then this condition must be included in the contract immediately upon execution. If the parties did not resolve this issue when signing the contract, then this means hiring the citizen without testing. In the future, such a condition may not be included in the agreement with the employee.

A similar mechanism is provided for in Art. 70 of the Labor Code of the Russian Federation and in the case when a citizen began his working activity without drawing up an employment contract. In this situation, if a contract is subsequently drawn up with him, the inclusion of an obligation to undergo testing is unacceptable.

Test duration

According to Art. 70 of the Labor Code of the Russian Federation, the general period for concluding an employment contract with a probationary period is 3 months. Moreover, for certain categories of managerial employees, this period can reach 6 months due to the importance of their activities for the enterprise.

These include:

• heads and chief accountants of organizations, as well as their deputies;
• heads of branches or separate structural divisions.

It is important to remember that if a fixed-term contract of up to 2 months is concluded with an employee, then in this case the employer does not have the right to include a probationary clause in it. If the duration of the employment contract is from 2 to 6 months, then the probationary period in this situation should not exceed 2 weeks.

Please note that periods when the employee was not actually at work are not counted towards the probationary period. These may include periods when the employee is on sick leave, on vacation at his own expense, etc.

An employment contract with a probationary period - who does not apply to

Art. 70 of the Labor Code of the Russian Federation defines a list of workers in respect of whom the establishment of a test when hiring is unacceptable.

These include:

• employees whose appointment was based on the results of a competition;
• workers elected to elective positions.
• employees who came to the organization by transfer from another organization;
• employees who received professional education (secondary or higher) a year before employment or less;
• women who are pregnant or raising children under 1.5 years of age;
• persons who were under 18 years of age at the time of employment.

How to indicate a probationary period in an employment contract?

In practice, to indicate test conditions in a contract, 2 clauses are usually added to the standard document. The first of them states that the employee is given a probationary period and also determines its duration.

The second paragraph should indicate a list of criteria that the employee must satisfy to successfully pass the test. Usually we are talking about the employee’s discipline, as well as the sufficiency of professional skills to complete the assigned tasks.

It is best to include both additional clauses in the first section of the employment agreement, where the employee’s position is indicated, as well as the duration (indefiniteness) of the agreement.

Extension or shortening of the probationary period

It is important to remember that Art. 71 of the Labor Code of the Russian Federation directly prohibits the increase (extension) of the probationary period. That is, if an employee, for example, was given a test period of 1 month (shorter than possible due to the requirements of Article 70 of the Labor Code of the Russian Federation), then its subsequent increase is unacceptable. At the end of this month, the employee will be considered to have passed the test; accordingly, his dismissal is possible only in the general manner and on the same basis as any other employee.

As for shortening the probationary period, the management of the organization can make such a decision at any time during the test. In practice, however, amendments to the contract are not even required. And the employer only needs to issue an order indicating that the employee has successfully passed the test.

It should be noted that during the probationary period, the employee can resign at his own request on a preferential basis. For this purpose, according to Art. 71 of the Labor Code of the Russian Federation, it is simply enough to notify the organization’s management of your desire 3 days before the expected date of dismissal, and not 2 weeks, as required by Art. 80 of the Labor Code of the Russian Federation for other employees.

Employment contract for a probationary period - form and sample

The following document can be used as a form of an employment contract:

Download the form

The attached file contains a standard open-ended employment contract with an employee, for whom the specific work will be the main one, and the duration of the probationary period is 3 months. A sample employment contract with a probationary period can be downloaded from the link:

Download sample

It is important to remember that during the test, the employee is subject to all local regulations in force in the organization that regulate his working conditions, without any special restrictions or exceptions. Accordingly, Art. 70 of the Labor Code of the Russian Federation directly prohibits the establishment of any discriminatory requirements (in terms of labor standards, wages, etc.).

If the test is successfully passed, the organization's management is not required to issue any additional documents, for example an order, as specified in Art. 71 Labor Code of the Russian Federation.

Dismissal during probation - legislation and court practice

According to Art. 71 of the Labor Code of the Russian Federation, if an employee shows unsatisfactory results when passing the test, the management of the organization has the right to dismiss him in a simplified manner. To do this, the employer must notify the employee 3 days before dismissal.

It is important to remember that upon dismissal due to unsatisfactory test results, the organization’s management is not required to seek the opinion of employee representatives (trade union organization), nor is it necessary to pay the employee severance pay.

Accordingly, the same Art. 71 of the Labor Code of the Russian Federation gives an employee the right to appeal dismissal in court. However, the norms of the Labor Code of the Russian Federation do not decipher the concept of “unsatisfactory results” and do not indicate how the management of the organization and the dismissed employee should argue that they are right. Since in practice this gap in the norms of the Labor Code of the Russian Federation leads to numerous disputes and conflicts, let us turn to the judicial practice of resolving them.

An employment contract with a probationary period - the position of the courts on dismissal

The basic document defining the judicial interpretation of this issue is the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application ...” dated March 17, 2004 No. 2. In paragraph 23 of the indicated document, the Plenum of the Supreme Court indicates that in the event of a challenge in court to an illegal, in the opinion of the employee, dismissal, the obligation proving the legality of this procedure rests entirely with the management of the organization.

As noted in judicial acts of regional courts, for example in the appeal rulings of the Trans-Baikal Regional Court in cases No. 33-244-2014 and 33-5077-2013, Art. 71 of the Labor Code of the Russian Federation gives the management of the organization, during the probationary period, the right to assess the business and professional qualities of the employee, which are determined in accordance with his compliance with his job duties (compliance with labor standards, maintaining discipline, compliance with the requirements of the Labor Code of the Russian Federation and local regulations).

At the same time, dismissal is unacceptable due to the personal qualities of the employee, as well as for subjective reasons based on the opinion of the employer. Therefore, to confirm the validity of dismissal, management must provide objective evidence that the employee cannot cope with the work assigned to him, is undisciplined, etc.

Criteria for dismissal

In the appeal ruling of the Rostov Regional Court dated December 18, 2014 No. 33-17069/2014, it was noted that Art. 71 of the Labor Code of the Russian Federation does not define a clear list of circumstances that may indicate negative results of an employee passing the test. This position of the legislator, according to the judges, indicates a variety of circumstances (a full list of which cannot be specified in the Labor Code of the Russian Federation) that make it possible to dismiss an employee.

However, an approximate list of evidence that allows management to confirm that they are right when dismissing an employee is defined in court decisions.

The City Court of St. Petersburg, in its ruling dated September 29, 2011 No. 33-14786/2011, indicated that the following may serve as evidence of the legality of dismissal of an employee during testing:

• acts of non-compliance (improper or untimely fulfillment) of labor standards;
• documented release of defective products;
• acts (reports) on violation by an employee of internal regulations at the enterprise;
• other documents indicating failure to fulfill the labor duties assigned to the employee.

The Moscow City Court's ruling No. 33-46262/14 dated December 12, 2014 also includes the following as admissible evidence indicating the right of the organization's management to dismiss an employee due to negative test results:

• testimony of witnesses confirming these facts;
• notices of dismissal;
• minutes of administrative meetings, etc.

***

To summarize, we note that establishing a probationary clause in the employment agreement allows the organization’s management to verify the professionalism and discipline of the hired employee within the allotted time. And if an employee does not meet the requirements, part with him in a simplified manner. We remind you that using the link above you can download a form and a sample employment contract for a probationary period.

nsovetnik.ru

EMPLOYMENT AGREEMENT with the director (fixed-term; no probationary period)

___________________ "___"__________ ____ city _______________________________________________, hereinafter referred to as (name of organization) "Employer", represented by ____________________________________, acting__ on (position, full name) on the basis of _________, on the one hand, and __________________________________, ( Full name) hereinafter referred to as "Employee", on the other hand, have entered into this agreement as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. The Employer instructs, and the Employee assumes, the performance of labor duties as a director in _____________________.

1.2. The work under this agreement is the main one for the Employee.

1.3. The Employee’s place of work is _____________________ at the address: ________________.

1.4. The employee reports directly to _______________.

1.5. The Employee’s work under this agreement is carried out under normal conditions. The Employee’s labor duties are not related to performing heavy work, work in areas with special climatic conditions, work with harmful, dangerous and other special working conditions.

2. DURATION OF THE AGREEMENT

2.1. The employee must begin performing his job duties from “___”_________ ____.

2.2. This agreement is a fixed-term agreement and is valid until “___”_____ ____.

2.3. The basis for concluding a fixed-term employment contract is _____________.

3. CONDITIONS OF PAYMENT FOR THE EMPLOYEE

3.1. For the performance of labor duties, the Employee is paid a salary in the amount of ______ (_________) rubles per month.

3.2. The employer establishes incentives and compensation payments (additional payments, allowances, bonuses, etc.). The amounts and conditions of such payments are determined in the Regulations on bonus payments to employees “__________”, which the Employee was familiarized with when signing this agreement.

3.3. If the Employee, along with his main job, performs additional work in another position or performs the duties of a temporarily absent employee without being released from his main job, the Employee is paid an additional payment in the amount of __% of the salary for the combined position.

3.4. Overtime work is paid for the first two hours of work at time and a half, for subsequent hours - at double rate. At the Employee's request, overtime work, instead of increased pay, may be compensated by providing additional rest time, but not less than the time worked overtime.

3.5. Work on a day off or a non-working holiday is paid in the amount of a single part of the official salary per day or hour of work in excess of the official salary, if work on a day off or a non-working holiday was carried out within the monthly standard working time, and in the amount of a double part of the official salary per day or hour work in excess of the official salary, if the work was performed in excess of the monthly working hours. At the request of an Employee who worked on a day off or a non-working holiday, he may be given another day of rest. In this case, work on a weekend or a non-working holiday is paid in a single amount, and a day of rest is not subject to payment.

3.6. Downtime caused by the Employer is paid in the amount of two-thirds of the Employee’s average salary.

Downtime due to reasons beyond the control of the Employer and Employee is paid in the amount of two-thirds of the official salary, calculated in proportion to downtime.

Downtime caused by the Employee is not paid.

3.7. The Employee's wages are paid by issuing cash at the Employer's cash desk (by transferring to the Employee's bank account) every half month on the day established by the internal labor regulations.

3.8. Deductions may be made from the Employee's salary in cases provided for by the legislation of the Russian Federation.

4. WORKING AND REST TIME REGIME

4.1. The employee has a five-day work week with two days off - ________________.

4.2. Start time: __________.

Closing time: ___________.

4.3. During the working day, the Employee is given a break for food and rest, which is not included in working hours.

4.4. The employee is granted annual paid leave of ___ (at least 28) calendar days.

The right to use vacation for the first year of work arises for the Employee after six months of his continuous work with this Employer. By agreement of the parties, paid leave may be provided to the Employee before the expiration of six months. Vacation for the second and subsequent years of work can be granted at any time of the working year in accordance with the vacation schedule.

4.5. For family reasons and other valid reasons, the Employee, on the basis of his written application, may be granted leave without pay for the duration established by the labor legislation of the Russian Federation and the Internal Labor Regulations “______________”.

5. RIGHTS AND OBLIGATIONS OF AN EMPLOYEE

5.1. The employee is obliged:

5.1.1. Conscientiously perform the following duties:

— produce new and renewed productions, ensure their high artistic level;

- conduct rehearsals;

— manage the work of the artistic and production department in the preparation and production of performances;

- submit proposals to management regarding the composition of production groups in ongoing productions;

— carry out planned, urgent and emergency introductions to previously staged performances;

- control the preservation of the artistic level of the performances staged during their operation at the hospital, on trips and on tour;

— ensure compliance with labor, production and creative discipline during rehearsals, performances and classes;

— participate in organizing and conducting events to improve the professional skills of creative workers;

— participate in the work of promoting theatrical and musical art, attracting spectators, and expanding creative connections.

5.1.2. Comply with the Internal Labor Regulations “___________” and other local regulations of the Employer.

5.1.3. Maintain labor discipline.

5.1.4. Comply with labor standards if they are established by the Employer.

5.1.5. Comply with labor protection and occupational safety requirements.

5.1.6. Treat the property of the Employer and other employees with care.

5.1.7. Immediately inform the Employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the Employer’s property.

5.1.8. Do not give interviews, conduct meetings or negotiations regarding the activities of the Employer without prior permission from management.

5.1.9. Do not disclose information that constitutes a trade secret of the Employer. Information that is a trade secret of the Employer is defined in the Regulations on Trade Secrets “____________”.

5.1.10. By order of the Employer, go on business trips in Russia and abroad.

5.2. The employee has the right to:

5.2.1. Providing him with the work stipulated by this agreement.

5.2.2. Timely and full payment of wages in accordance with your qualifications, complexity of work, quantity and quality of work performed.

5.2.3. Rest, including paid annual leave, weekly days off, non-working holidays.

5.2.4. Compulsory social insurance in cases provided for by federal laws.

5.2.5. Other rights established by the current legislation of the Russian Federation.

6. RIGHTS AND OBLIGATIONS OF AN EMPLOYER

6.1. The employer is obliged:

6.1.1. Comply with laws and other regulations, local regulations, and the terms of this agreement.

6.1.2. Provide the Employee with work stipulated by this agreement.

6.1.3. Provide the Employee with the equipment and documentation necessary to perform his job duties.

6.1.4. Pay the full amount of wages due to the Employee within the time limits established by the Internal Labor Regulations.

6.1.5. Provide for the Employee’s everyday needs related to the performance of his job duties.

6.1.6. Carry out compulsory social insurance for the Employee in the manner established by federal laws.

6.1.7. Perform other duties established by the current legislation of the Russian Federation.

6.2. The employer has the right:

6.2.1. Encourage the Employee for conscientious, effective work.

6.2.2. Require the Employee to fulfill his job duties as defined in this agreement, to take care of the property of the Employer and other employees, and to comply with the internal labor regulations.

6.2.3. Bring the Employee to disciplinary and financial liability in the manner established by the current legislation of the Russian Federation.

6.2.4. Adopt local regulations.

6.2.5. Exercise other rights provided for by the current legislation of the Russian Federation and local regulations.

7. EMPLOYEE SOCIAL INSURANCE

7.1. The employee is subject to social insurance in the manner and under the conditions established by the current legislation of the Russian Federation.

8. WARRANTY AND COMPENSATION

8.1. During the period of validity of this agreement, the Employee is subject to all guarantees and compensations provided for by the labor legislation of the Russian Federation, local acts of the Employer and this agreement.

9. RESPONSIBILITY OF THE PARTIES

9.1. In case of failure or improper performance by the Employee of his duties specified in this agreement, violation of labor legislation, the Employer's internal labor regulations, other local regulations of the Employer, as well as causing material damage to the Employer, he bears disciplinary, material and other liability in accordance with the labor legislation of the Russian Federation .

9.2. The Employer bears financial and other liability to the Employee in accordance with the current legislation of the Russian Federation.

9.3. In cases provided for by law, the Employer is obliged to compensate the Employee for moral damage caused by unlawful actions and/or inaction of the Employer.

10. TERMINATION OF THE AGREEMENT

10.1. This employment contract may be terminated on the grounds provided for by the current labor legislation of the Russian Federation.

10.2. The day of termination of the employment contract in all cases is the Employee’s last day of work, with the exception of cases where the Employee did not actually work, but retained his place of work (position).

11. FINAL PROVISIONS

11.1. The terms of this employment contract are confidential and are not subject to disclosure.

11.2. The terms of this employment contract are legally binding on the parties from the moment it is signed by the parties. All changes and additions to this employment contract are formalized by a bilateral written agreement.

11.3. Disputes between the parties arising during the execution of an employment contract are considered in the manner established by the current legislation of the Russian Federation.

11.4. In all other respects that are not provided for in this employment contract, the parties are guided by the legislation of the Russian Federation governing labor relations.

11.5. The agreement is drawn up in two copies having equal legal force, one of which is kept by the Employer and the other by the Employee.

12. DETAILS OF THE PARTIES 12.1. Employer: ___________________________________________________ Address: _____________________________________________________________________ Taxpayer Identification Number ___________________________, Checkpoint _________________________________ Account ____________________________ in ________________________________________ BIC ___________________________. 12.2. Employee: _______________________________________________________ passport: series __________, number __________, issued by ________________________ __________________________ "__"__________ ___, department code _______, registered at the address: ________________________________________. 13. SIGNATURES OF THE PARTIES Employer: Employee: ____________/___________ _____________________ M.P.

Source - Kasenov E.B.

blank-obrazets.ru

Starting work is always exciting for an employee. In addition, further cooperation between employer and employee depends on a good start to work.

Correctly executed documents also play an important role. In this article, we will consider in detail what a probationary period looks like and what are the main features of such a test of the applicant’s professional skills.

Concept

A probationary period is understood as a provision of an employment contract established by mutual agreement of the parties. Its purpose is to check the professional qualities of the applicant and the competence of the person being hired.

According to the law, a probationary period can be determined if:

• Both parties to the labor relationship gave their consent to include this condition in the contract.
• This condition applies to a new employee.
• An employment contract with a probationary period (according to the Labor Code of the Russian Federation) must be concluded only in writing (otherwise the employee is considered hired without probation). Even if a citizen is hired without an agreement, a probationary agreement must be signed.
• The employee undergoing the test is subject to the same working conditions as other employees.

The test condition must be included in the employment order, but such information is not included in the labor report.

Below is an employment contract for the probationary period - a sample document.

Restrictions

The test can be administered to almost all employees, with the exception of certain categories. These include:

• pregnant women;
• citizens who graduated from a higher educational institution and got a job in the first year after studying;
• minor citizens;
• employees who are transferred to this organization;
• citizens whose cooperation is temporary (less than 2 months);
• citizens elected to elective office.

Why is it installed?

As already mentioned, the trial by law must be ordered by mutual agreement of the parties. But, unfortunately, in practice this rule is rarely observed. And the probationary period is assigned only at the request of the employer, and applicants are forced to agree to all the conditions of its completion.

In particular, some organizational leaders think that a test is a reason to reduce an employee’s salary or reduce the number of guarantees and compensations due, and sometimes to fire him simply because he simply did not like the employee as a person. So, every citizen should know that this is illegal. Any employee, even on a probationary period, has the right to all guarantees and compensation provided by law. At the same time, the employer must not underestimate the salary of the employee undergoing testing.

It should be remembered that the test is necessary not in order to save on a new employee, but in order to identify his professionalism and competence in his position.

Duration

The longest test period is 90 days. But for some positions it can reach six months. These are mainly management positions:

• director or his deputy;
• chief accountant or his deputy;
• head of a separate division.

If a person enters into an agreement, the probationary period (a sample document will be presented below) is allotted up to two weeks (provided that the term of the agreement varies from two months to six months).

The minimum period for passing the test is not regulated by law and is established only by agreement of the parties. The exception is the legal requirement for civil servants. The duration of the test in this case can range from a month to a year.

If the testing period has passed and the employee continues to work, he automatically passes the test and receives the appropriate position.

If an employment contract is concluded with a probationary period of 3 months (a sample with an individual entrepreneur can be seen in our material), then this point must be recorded in the document.

Extension

The employer cannot increase the probationary period, even if permission has been obtained from both parties. The exception is the fact that the employee was disabled for a certain period of time during the test. In this case, the probationary period will be considered interrupted and will begin from the moment the employee began his duties. It turns out that the date specified in the employment contract is shifted to the actual end of the test.

To extend the trial, an order must be drawn up with the necessary documents attached.

Peculiarities

An employment contract for a probationary period (a sample of which was presented earlier) is no different from other types of cooperation agreements. It simply must include a condition about the test and the period for completing it.

According to legal norms, the agreement must be concluded in writing.

If the labor relationship has not been formalized in writing, and the citizen has already begun his labor activity, then the manager must formalize the legal relationship that has arisen within three days. In this case, it is impossible to include probationary conditions in the employment contract. The test can be applied only by agreement of the parties by concluding an appropriate additional agreement.

Documenting

Registration of a probationary period is not limited to just indicating this fact in the employment contract or employment order.

And if we take into account that during the test the employee may not suit the company and be fired, the entire test procedure must be recorded in writing.

From the first day of the probationary period, each performance of the employee’s duties must be monitored and recorded by an authorized person assigned to the employee.

Such control may look like a plan, drawn up in the form of a table, for the entire period. A special journal should be created where the results of completing tasks should be entered, and it is also necessary to attach everything from an authorized person with an analysis of completed or uncompleted tasks.

At the end of the probationary period, the authorized person, together with the supervisor, must analyze the work done and make a decision on the results.

Test for a fixed-term contract

A fixed-term employment contract with a probationary period (a sample is presented below) depends on the specific purposes for which it is concluded and what the employee must do. There are the following types of work for which fixed-term contracts can be concluded:

1. Seasonal work. According to Art. 293 of the Labor Code of the Russian Federation, taking into account the specifics and definition of seasonal work, the period of which does not exceed six months, it is inappropriate to establish a test of more than 14 days.
2. The duration of this type of work, according to Art. 59 of the Labor Code of the Russian Federation, does not exceed two months. Therefore, a probationary period is inappropriate here.
3. Other works. If the parties come to an agreement and draw up a contract for a period of up to six months, the trial can be scheduled for no more than 2 weeks.

So, if a temporary employment contract for a probationary period (a sample with an individual entrepreneur was presented above) is urgent in nature and is concluded for no less than six months, then a trial takes place, and the manager has the right to appoint it.

Recording the results

The procedure for passing the tests is not regulated by labor legislation, and the assessment of how the employee coped with the tasks falls entirely on the shoulders of the employer.

First, the employer must decide how work will be organized during the test. At the same time, all proposed tasks must comply with the functions established by the employment agreement and the job description of the new specialist. And for this, before hiring an employee, he must be provided with a sample employment contract for a probationary period.

Secondly, the manager should not create obstacles for the employee to perform his immediate duties. And when analyzing the results of work, he must make an objective assessment.

The test result must be presented in writing as a conclusion with attachments. These include explanatory notes from the employee himself, testimony from other employees, reviews from the organization’s clients and other documents.

There is no such requirement established by law. But such registration of the results of the probationary period will help in the future if the employee was fired for failing to pass the test and a complaint was filed in court.

Termination of labor relations

An employment contract for a probationary period, a sample of which should have been signed at the beginning of the employment relationship, can be terminated during the probationary period if there are necessary reasons for this. In this case, the employer is obliged to notify the employee about this. The notification must comply with the established algorithm:

1. Notice of failure to complete the probationary period must be in writing.
2. The document must be sent to the employee at least three days before dismissal.
3. The notice must contain objective reasons that justify the reasons for dismissal.
4. The document is given to the employee against signature. If the employee refuses to sign it, a document of refusal must be drawn up in the presence of several witnesses. To protect yourself from unexpected consequences, it is better for the employer to send a notice of dismissal by registered mail with an inventory. But in any case, the notice period should not exceed three days before the date of dismissal.

If these standards are not observed, termination of the contract during the probationary period will be declared invalid by the court, and the employer will be obliged to reinstate the employee in the workplace with payment of compensation and payment for forced absences.

If the contract is terminated during probation, monetary compensation in the form of severance pay is not provided, but you can receive compensation for unused vacation (a sample employment contract for a probationary period may contain similar information).

But there is also a downside to the process. The employee may be dissatisfied with the work process. Consequently, he will want to terminate the employment contract. To do this, you must write a notice three working days in advance. Moreover, if the initiative to dismiss comes from the employee, then the employer does not have the right to force him to work for two weeks. Almost all employers forget about this fact.

Therefore, the employment relationship must be terminated no later than three days from the date of filing the application. Neglect of this fact is a violation of the employee’s rights.

End of test

A sample employment contract for a probationary period may contain information on what to do after the end of the trial. It could be:

• drawing up an order for passing the test;
• do not fill out any documents, then the employee is automatically transferred to permanent work.

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