Dismissal during a probationary period occurs in exactly the same way and on the same grounds that apply in other cases. However, at this time, the employer has the right to dismiss the employee due to the fact that he did not pass the test. For this purpose, there is a special procedure that involves documenting any mistakes, actions and inactions of an employee that indicate his professional incompetence. The employee himself has a similar right - he just needs to notify management 3 days in advance and resign.

In general, the grounds for dismissal may be exactly the same, but there are a few differences. The main reason for dismissal by the employer is that the employee has failed to prove his ability to cope with the job. However, this fact must be recorded and proven by the company itself. An employee is not required to prove his professional suitability/unsuitability. And in the event of a decision to dismiss, the employer must attach relevant documents documenting the employee’s mistakes in the performance of his duties.

Thus, we can conclude that dismissal during an audit has several differences from ordinary cases.

Maximum test duration

In general, the duration of such a period cannot be more than 3 months, i.e. maximum 90 calendar days. However, there are several categories of workers for whom this time can be increased to six months:

• supervisor;
• Chief Accountant;
• deputies of these persons.

There are also cases of establishing a shorter period for testing. If the contract is concluded for 2 to 6 months (for example, with seasonal workers), the total duration of the inspection should be no more than 14 days. After this time, the parties must decide whether they should continue to cooperate with each other.

The test provision itself must be included in the text of the document:

• employment contract;
• or additional agreements thereto.

The legislation directly states that the absence of this condition means that the employee has already been hired, and no testing is provided for him. That is, in such cases he can only be dismissed in the usual manner.

The parties may come to an additional agreement to increase the initially established duration of the test. The corresponding fact is reflected in the additional agreement to the previously signed employment contract. However, the total duration still cannot exceed the values ​​​​mentioned above.

At the initiative of the employee

At any moment, an employee may realize that this job is not suitable for him. Therefore, the law provides that he has the opportunity to resign by notifying the company in the form of a regular written statement. In this case, work as such is not expected - it is enough to work for another 3 days, and then you can receive a work book and all due payments:

• on sick leave (if any);
• (a small amount must be paid even if the person has worked for several weeks);
• other payments (for example, at night, etc.).

The dismissal procedure looks exactly the same as in normal cases:

At the initiative of the employer

In this case, the procedure has 2 significant differences:

Thus, the sequence of actions is as follows:

1. The company provides the employee with a written notice, which can be drawn up in any form. In the text it is advisable to refer to the relevant norms of the Labor Code. Moreover, the employee must also read the notice and put his signature, as well as the date of reading.
2. Next, the management issues a dismissal order, the HR specialist draws up the labor report, and the accounting department makes the calculations. An entry in the book is made with reference to the Labor Code norm.
3. On the last day, the employee is given all the documents, and the salary is transferred, etc.

Concerning ways to determine professional incompetence, then the company has the right to independently determine the system for assessing professional skills, as well as the forms of documents (for example, checklists) for checking them. The preparation of such papers is largely necessary in order to protect against possible risks of the employee appealing the dismissal in court. Examples of these documents include:

• explanatory statements of the employee;
• memos addressed to management;
• acts recording professional errors (usually signed by at least 2 witnesses).

Expert opinion

Sobolev Dmitry

Administrative offenses lawyer, website expert

If the employee continues to work after the end of the probationary period, this means that he has passed it automatically. Those. The employer’s “silence” is equivalent to his positive decision to hire the employee as a permanent employee.

Who can't be fired during a trial?

In general, the law does not allow the dismissal of 2 categories of employees:

1. Those who took sick leave during the test.
2. Those who went on vacation during the test (including at their own expense).

That is, dismissal can be carried out only after the employee who is sick or went on vacation returns to work. However, all this time is not counted towards the test period. For example, an employee started work on June 1, 2019. The trial was originally supposed to last 2 months and end on August 1st. However, from July 1 to July 15, he took sick leave. During this period, such an employee cannot be dismissed. However, the test period is extended from August 1 to August 15.

In addition, the legislation also establishes a list of persons who cannot be hired at all under tests. These are, for example, pregnant women, minors and some other categories of workers.

The probationary period is the last step on the path to a suitable position. This is the period provided for by Russian legislation, during which the employer studies the employee and his competence, the employee, in turn, decides whether this job is suitable for him or not. A situation such as dismissal during a probationary period at the initiative of the employer often occurs. It would not be a bad idea to figure out for what reasons you can lose your job while being a probationer, who is not at risk, and what rights a fired person has.

Reasons for dismissal

Dismissal during the probationary period at the initiative of the employer is a procedure that is initiated as a result of the fulfillment of certain conditions. The list of valid reasons for dismissal includes the following:

• the employee ignores compliance with the requirements established by the organization’s safety regulations;
• the employee has been observed to be regularly and frequently absent without good reason;
• the person appears at the workplace in a state of alcohol or drug intoxication;
• the person does not comply with the rules of labor discipline and exhibits unprofessional behavior;
• the presence of various criminal offenses recorded against the tested employee;
• the employee fails to cope with the responsibilities assigned to him and does not correspond to the position.

It is also possible to dismiss an employee before the expiration of the probationary period if he is unable to perform his duties for health reasons. The above reasons are relevant only if the dismissal occurs at the initiative of the employer. However, not every employee can be fired.

The employer must provide documents confirming that the employee failed to cope with the work assigned to him or performed it poorly. It can be:

• memos for the employee;
• reports on the release of defective products;
• claims from clients, customers;
• written complaints;
• other documents.

Who can't be fired

There is a certain list of persons who are not afraid of dismissal during the probationary period. In addition, the following persons can apply for the desired position without passing a preliminary test:

• pregnant women at various stages of pregnancy;
• women who have children under 1.5 years of age in their care;
• persons under the age of majority (from 14 years of age);
• employees who were selected for this position through a competition;
• specialists who came to work after graduating from university;
• employees working under a contract for up to 2 months.

It is also impossible to dismiss an employee during a probationary period if he made a transition from one position to another within one organization, or left for another with prior agreement with management.

It is important to know that even if, for example, a pregnant woman or a seasonal worker consents to the establishment of a trial, such a clause will not have legal significance, and it will be impossible to dismiss her as someone who has not completed the probationary period. And if, nevertheless, the employer decides to say goodbye to the employee on this basis, then this will be a violation of labor laws. The court will certainly reinstate such an employee.

Rights and responsibilities of an employee

It is not always possible to leave a company during a probationary period without consequences. There may be expenses for tuition fees. If the completion of the probationary period was accompanied by training for the employee at the expense of the organization, the cost of training will be collected from the dismissed person. Article 249 of the Labor Code of the Russian Federation says that the employee has an obligation to work out the period during which training costs are compensated.

Interesting data

According to the observations of specialists from the research center of one of the personnel agencies, the dismissal of employees on a probationary period at the initiative of the company occurs in 40% of cases, at their own request - in 15%, by mutual consent - in 35%.

Fines cannot be taken from an employee who performs his work within the framework of the probationary period. The very meaning of this period is to establish a correspondence between a person and a position. If situations arise that lead to a fine in a full-time position, the employer may consider dismissing the employee before the end of the probationary period.

A failed employee is legally entitled to receive the following monetary payments from the employer:

• the full amount of wages for the period worked during the probationary period;
• if available - payment for sick leave;
• compensation for unused vacation days by the employee.

Having decided to dismiss an employee during a probationary period, the boss must pay the entire amount due no later than the last day of work. Payment can be made either electronically or in cash. In addition to the amounts indicated above, no compensation is provided to the dismissed person.

The video talks about how to legally dismiss an employee at the initiative of the employer

If a dismissed test worker does not appear at work for a long time, the amount due to him by law is stored on the territory of the enterprise exactly until the dismissed person demands the money required by law. Immediately after this, the amount is transferred to the subject in a way convenient for him.

The procedure for dismissal during a probationary period includes making an appropriate entry in the work book. The entry must have a reference to an article of the Labor Code of the Russian Federation; after making the entry, the HR officer’s signature and seal are placed, and the employee also puts his signature next to it as proof of familiarization with the entry made.

If you have questions regarding the dismissal procedure during the probationary period, write in the comments

You will need

• - employment contract;
• - notice of dismissal;
• - written evidence;
• - act of refusal;
• - dismissal order;
• - employee’s work record;
• - personal card of the employee.

Instructions

First, try talking to the employee and find out why he is not doing the work required. If there are no reasons for non-fulfillment of duties, and he cannot give reasonable explanations for such behavior, offer him, at his own request or by agreement of the two parties, compensation for early termination of the employment contract. Consider that compensation is for the fact that at the stage of selecting a specialist we were unable to consider the employee as a person who was not ready to work.

If this method is unacceptable to you, or the newcomer does not agree with such a proposal, then begin to collect evidence for future justification of the reasons for the early dismissal of the employee. Give this employee written orders and tasks, with established deadlines for their completion and requiring a written report on the work done. Monitor the process of fulfilling all orders.

When you think that you have collected enough convincing arguments for dismissal during the term, draw up a written notice of termination of the employment contract due to unsatisfactory performance during the probationary period. In the notice, indicate all justified reasons for dismissal. Register the notice according to the document flow rules. Three days before the day of dismissal, give the employee a notice, taking from him a receipt of its receipt. The employee may refuse to familiarize himself with the notice, then draw up an act of refusal to receive the notice and have it signed by the employees present at the refusal.

Issue an order to dismiss the employee during the probationary period. Try to bring the order to the dismissed employee against his signature. If the dismissed person refuses to sign the document, make an appropriate entry about this in the order.

In the employee’s personal card and work book, make an entry in accordance with the labor code stating that the employment contract was terminated at the initiative of the employer due to unsatisfactory work results during the probationary period. In such a situation, severance pay is not paid, and dismissal occurs without taking into account the opinion of the primary body (trade union). The employee signs the work book and personal card. If an employee refuses to receive a work book or does not show up for it, draw up and send to his address a registered notice of the need to pick up the work book. If you refuse to receive a work book, draw up a report.

When the job search has been successfully completed, the resume has been approved, the interview is over, and all that remains is to start working, the applicant often must pass the last test - undergo a probationary period. This is the period provided for by law when the employer can evaluate the qualities of the employee and decide for himself the issue of long-term cooperation with him. And he, in turn, will try himself in a new place and decide whether the proposed working conditions are suitable for him. If the parties are dissatisfied with each other, they can separate according to a simplified procedure in a short time.

Is it legal to be relieved of duty while undergoing probation?

The Labor Code of the Russian Federation states that the testing period is not too different for an employee from any other working time. Chapter 21 of the Labor Code of the Russian Federation explains that an applicant undergoing verification has equal rights and responsibilities with a permanent employee.

Differences between dismissal of a subject and general grounds:

• warning 3 calendar days in advance (instead of the usual 2 weeks);
• after the expiration of the probationary period, immediate release without service is possible;
• if at the end of the verification period the employee continues to work, this means that he has passed the test and from that day on is a permanent employee, protected by all points of the Labor Code without reservations.

So, the employer, of course, has the right to dismiss an employee at any time during the probationary period, and the reasons may be identical to those accepted for permanent employees.

IMPORTANT! The clause on the equal rights of employees also applies to remuneration: according to the law, it cannot be set in smaller amounts, citing a probationary period. However, you can get around this limitation by fixing the salary and bonuses separately in the contract, or by officially raising the salary based on the test results.

"We don't owe you anything anymore"

Receiving a turnaround from the employer during the testing period, the unsuccessful employee has the right to all payments due to him by law:

• salary for the period of employment (the total length of service of the employee is taken into account);
• payment for sick leave (if this occurred);
• compensation for unused vacation days (2.33 vacation days are counted for each working month). A month is considered worked if the employee was employed for 15 or more calendar days.

ATTENTION! Vacation compensation must be paid even if the person did not have time to work for the 6 months required to go on vacation for the first time.

With this form of dismissal, it is not necessary to demand payment of severance pay.

What funds are entitled to be withheld from an employee upon dismissal?

Tuition fee. If, during the tests, the applicant was trained at the expense of the company, which is reflected in the clause of the employment contract and/or in a special apprenticeship agreement, then sometimes full or partial payment for training may be withheld from the dismissed person. According to Article 249 of the Labor Code of the Russian Federation, by undergoing training at the expense of the employer, the employee thereby gives an obligation to work for a certain period in order to compensate for the costs, usually until the end of the testing period. If the dismissal occurs earlier, then the former employee may be deducted payment according to the days not actually worked.

Fines. A priori, an employee on a probationary period cannot be fined, since the very meaning of this period is to determine the suitability of his future position and ability to cope with his duties. In situations that threaten a permanent employee with a monetary fine, the person undergoing the test will receive a reprimand or be fired, as the employer decides.

Reasons for possible dismissal during the probationary period

Many people mistakenly believe that it is easy to fire a person during a test by simply expressing such a desire. An employee can leave without explaining the reasons for his decision, but the employer must have compelling, documented reasons provided for by law. They are the same for all employees:

• inadequacy of the applicant for the position provided, insufficient quality of the work performed - clause 2 of Article 40 of the Labor Code of the Russian Federation (must be documented);
• inability to fully perform professional duties due to changes in health status – the same point;
• violation of internal regulations, job descriptions, discipline requirements – clause 3 of Art. 40 (there must also be confirmations);
• unexcused reasons for absenteeism - clause 4 of article 40;
• showing up at the workplace drunk or under drugs – clause 7 of Article 40;
• criminal offenses – clause 8 of Art. 40.

Who cannot be fired during the probationary period

The law provides for special categories of citizens who should not be subject to checks during official employment. The following cannot be placed on a probationary period and, accordingly, dismissed under Article 71 due to failure of the test:

• pregnant women and those with young (up to 1.5 years of age) children;
• persons who have not yet turned 18 (officially, according to the law, employment can be obtained from the age of 14);
• applying for a specialized position in the first year after graduation;
• persons who were selected on the basis of a competition;
• invited from another organization;
• seasonal workers with less than two-month contracts.

Risks of the probationary period for the employer

Usually, employees are more afraid of passing a probationary period, because dismissal under the relevant article (namely, Article 71 of the Labor Code of the Russian Federation) when a person fails to pass the performance test is very unpleasant. The provisions of the law are largely aimed at protecting employees as a more vulnerable category. However, for the employer there are a considerable number of pitfalls that threaten legal proceedings, troubles with the labor inspectorate and other problems.

Possible employer mistakes

1. Oral employment contract, deferred execution

   If the employee began to perform his duties with the knowledge of the employer, then a formal agreement with a clause on the existence of a probationary period must be concluded no later than 3 days. If this is not done, then the employee is formally considered hired without passing the test and can only be fired in the usual manner (Part 2 of Article 67).

   IMPORTANT INFORMATION! An agreement on a probationary period is allowed to be drawn up before drawing up an employment contract, and then a clause about it can be legally included in this document later.

2. Unreasonable reasons for dismissal

   When dismissing an employee on his own initiative, the employer must state the reasons in writing. If the employee does not agree with them, the owner must be ready to provide documentary evidence:

   • customer complaints (written);
   • reports from the curator or other employees;
   • certificates on the quality of work performed;
   • recording absenteeism;
   • offense records;
   • a log of individual assignments for the testing period with recorded unsatisfactory results, etc.
3. Lack of awareness of the person being hired

   When challenging the dismissal, a negligent employee may plead ignorance of his responsibilities and accepted rules. Therefore, it should become a general rule before employment to acquaint the applicant with a signature with the rules of the work schedule, job description, and safety requirements.

4. Violation of initial agreements

   The employer does not have the right to unexpectedly change the conditions specified in the employment contract (salary amount, time of testing, its conditions, etc.).

   IMPORTANT! It is necessary to ensure that the wording in the required documents is correct. Thus, an agreement on a probationary period is valid only when included in the employment contract. In addition, the combination “probationary period” is generally accepted, however, the term “probation” is enshrined in legislative acts, and changing it can be qualified as an infringement of the employee’s rights.

5. Compliance with the dismissal procedure

   The notice of dismissal must be signed by an employee who is familiar with it on time, and if he refuses, a special document is drawn up - an act certified by two witnesses.

So, in order to properly part with an unsatisfactory job applicant during or after the completion of the probationary period, you need to strictly monitor compliance with the formal aspects of labor legislation.

Getting a job has a lot of subtleties and nuances. When applying for legal employment, you must first undergo a probationary period, which lasts from one to several months, and only then does the work experience begin to count.

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But there are cases when an employee is fired during the probationary period, or he himself leaves the place. Let's find out how the dismissal procedure occurs during the probationary period by law.

What does the law say?

According to Art. 16 Labor Code of the Russian Federation, official registration of an employee, that is, the establishment of a certain salary, is possible only after passing the probationary period.

Also Art. 26 of the Labor Code of Russia states that in some cases it can be omitted.

Why take a closer look at the employee?

As practice shows, a probationary period helps to identify shortcomings in a candidate for a position, gaps in knowledge and lack of necessary skills. Or, conversely, it provides an opportunity to reveal the best sides of a potential employee.

In any case, before official employment, the employer should look at the candidate “in action.”

According to Art. 70 of the Labor Code of the Russian Federation, after successfully completing the probationary period, days of work can be entered into the work book as a count of length of service (with the consent of the employer).

Who is tested and when?

The employer has the right to establish a probationary period for all persons who have reached the age of 18, have work experience and have finally left their place of work.

Its passage begins on the first working Monday. Holidays and weekends do not count towards your probationary period.

Restrictions for the employer

An employer does not have the right to hire a candidate for a position on a probationary period if he:

• has not reached the age of majority;
• a pregnant woman or mother with small children under 1.5 years of age;
• transferred from one company to another (at the invitation of the company) to a similar position;
• won a competition to replace a fired/left employee.

If a potential employee belongs to at least one of the above categories, then setting a probationary period is illegal.

Deadlines

Depending on the class of the employee, in Art. 27. The Labor Code provides for different deadlines:

• for representatives of blue-collar professions, a probationary period of no more than one month is provided;
• for representatives of other professions – about 3 months;
• in special cases, in the presence of negative reviews – 6 months.

Possible test results

There are two possible outcomes of the situation – positive and negative.

If the “practice” is completed in good faith, the employer formalizes the employee by concluding an employment contract with him.

If the results of the probationary period cause criticism, then the employer has the right not to continue cooperation with the person.

In what cases is dismissal possible?

Leaving work before the end of the probationary period is possible at the initiative of the employer or employee.

Let's consider both cases.

Employer initiative

Article 71 of the Labor Code of the Russian Federation states that the employer has the right to early employment - upon completion of the probationary period.

However, you should notify about this no later than 3 days in advance of the necessary care. The dismissal of an employee who is on a probationary period occurs in writing.

On a piece of paper, the employer must indicate the reasons why he is not satisfied with the performance of a potential candidate for the position.

The notice is drawn up in two copies: one for the employer, the other for the employee.

Example notification:

Employee initiative

There are also cases when an employee leaves his post by his own decision.

He is obliged to write a written notice three days before leaving in one copy, which is intended for the employer.

The person must also pay back all the money received as salary for the probationary period and return the work book to the company secretariat.

Example document:

Features and nuances of the situation

The dismissal procedure during the probationary period has its own nuances and features. Let's look at them.

Working off

As a rule, processing takes from three days to a week. During the working period, cases related to dismissal are resolved.

It is necessary for the following reasons:

• in a few days the employee completes all his work and completes his projects;
• during the service, management can find a replacement for the person who left the post;
• all documents necessary for the full departure of the former employee are completed and prepared.

The employee went on sick leave

Taking sick leave during a probationary period is normal legal practice.

The legislation of the Russian Federation provides for leave for people who have a fever, have received any injuries, etc.

Some employers mislead employees that if they go on sick leave, they will not pass the probationary period. This is not true: it is enough to provide evidence of your illness (certificates from a doctor, x-rays, etc.), and the employer must release you from duties.

At the same time, dismissal is impossible until the employee returns to work after illness.

Directors and financially responsible persons

The procedure for their dismissal does not differ from the above rules: the same provisions of the Labor Code of the Russian Federation come into force.

Replacements for management positions are sought during the previous employee's service.

It is worth considering that when a financially responsible person leaves, you should check the property and funds for which he was responsible, and only after that draw up a departure agreement. Property verification occurs through an inventory.

In any officially operating company or organization there is an inventory commission that operates constantly.

It consists of the heads of departments or workshops of the enterprise, the chief accountant, the head of the company or her deputy.

During the inventory process, an act of counting material assets is drawn up, in which the commodity property is weighed, measured, the initial number of valuables is calculated, and the state of things before and after the employee’s work is compared.

Public and private companies

The conditions for dismissal during a probationary period do not differ much in public and private companies.

For example, an employee of a government agency will have to write a statement three days before leaving; if the initiator was the manager, then he writes the notice, accordingly.

The same procedures must be followed by an employee in a private company. Therefore, there are no differences.

The procedure for registering dismissal during a probationary period

The departure of an employee who was on a probationary period is accompanied by a lot of hassle: preparing documentation, processing the work record book, establishing the necessary payments and compensation.

Preparation of documents

There is a certain scheme according to which an employee who is on a probationary period is dismissed.

It includes the following steps:

• First of all, the manager prepares documentation confirming that the employee does not meet the requirements to perform the job and his competence is insufficient in the relevant area. As a rule, reports, notes from the employee’s colleagues, explanatory notes, etc. act as evidence.
• Next, the manager writes a notice in which he notifies the employee of his decision. The employee is informed of his imminent dismissal by attaching documentation.
• After reviewing the claims, the employee signs in a special work journal.

Entry in the work book

After completing the collection of documentation and the dismissal procedure, a corresponding entry is made in the employee’s work book (example):

A copy of the work book is made at the enterprise, after which it is returned to the employee’s hands.

Payments and compensations

Compensations that are due to the employee according to the employment contract are also paid (for example, compensation for unused vacation, etc.).