As a rule, work activity in a new place begins with. During this period, the employer can initiate the dismissal of the employee, and the employee has the right to leave work. In any case, dismissal probationary period must be carried out in accordance with all the rules discussed in this article.

Is it permissible to be fired during the probationary period?

A probationary period is a period during which the employer can identify and evaluate professional qualities hired employees. The terms of the probationary period are specified in the employment contract, which should be carefully studied before signing. During this time period, the parties to the transaction must evaluate the feasibility of continuing the employment relationship.

The issue of organizing a probationary period is regulated by the provisions of Article 70 of the Labor Code Russian Federation. The duration of this time period is specified in the contract and is also reflected in the order for employment.

However, it is unacceptable to establish a probationary period for the following categories of citizens:

• women during pregnancy;
• women raising children under the age of one and a half years;
• citizens under eighteen years of age;
• graduates of higher and secondary professional educational organizations(if you get a job in your specialty within a year after receiving your diploma);
• people hired for positions as a result of a competition;
• people appointed to office as a result of elections;
• people who were hired as a result of a transfer (by invitation) from a similar position from another company;
• citizens with whom an employment agreement has been concluded for a short period (up to two months).

Thus, answering the question about being on probation, we can say no. This is due to the fact that, according to the law, women in this position are not allowed to have a verification period.

To confirm his status, the hired employee must independently provide identification documents. It is important to understand that the trial period can only be applied when hiring a new employee for a vacant position. Moreover, if there is a need to transfer a current employee of a company/institution to new position, then the verification period is not assigned.

The duration of the probationary period is individual in each specific case and depends on the position held. Most often, this period does not exceed three months, but when a person is hired for a leadership position, the verification period can increase to six months. When concluding an employment contract for a short period, two to six months, the probationary period cannot be more than two weeks.

The duration of the verification period is determined in calendar days (including weekends and holidays). At the same time, those days on which the trainee did not go to work for a good reason (for example, he was on sick leave, due to downtime at work, while performing government duties) are not included in this time period.

Reasons for dismissal

The grounds for dismissing a newcomer on a probationary period and an existing employee are practically no different. However, if during the testing period the employee demonstrates unsatisfactory results in his labor activity, then the employer has the right not to give him severance pay.

The most popular grounds for dismissing a person during the probationary period at the initiative of the employer:

1. Low results obtained as a result of the final certification.
2. Failure of the newcomer to perform his duties properly (for example, incompetence, absenteeism, tardiness, etc.). In this case, the employer must take a number of measures, for example, warn the employee about the inadmissibility of such an attitude towards work in writing or by applying other disciplinary sanctions. Only after these actions are completed, the employer receives the right to dismiss the intern.
3. Causing damage to the company resulting from the actions of a newcomer. This could be damage/theft of property, disclosure trade secret etc. Before dismissing an employee, you will need to prove the employee’s guilt.
4. Immoral behavior that is inappropriate for a person holding a certain position in a company. For example, if a school teacher humiliated the dignity of a student.
5. Coming to work in an inappropriate manner. For example, while drunk or under the influence of drugs.
6. Presentation of falsified documents when applying for a job. For example, providing a fake higher education diploma.
7. In case of staff reduction due to the liquidation of the company.

The most popular grounds for dismissing a person during the probationary period at the initiative of the employee:

1. The emergence of personal circumstances that arose after employment. For example, a forced move to another city, pregnancy, health problems for loved ones, etc.
2. Unsatisfactory working conditions. For example, poor lighting, microclimate, environmental indicators, etc.
3. Understanding that existing qualifications/experience/education do not correspond to the position held.
4. There is no prospect for career advancement.
5. A more attractive job offer appears.

At the request of the employee

Regardless of whether a company employee is on a probationary period or not, he always retains the right to resign on his own initiative. This procedure will not cause any particular difficulties. In order to vacate a position, an employee will need to notify his employer in writing three days before the planned date of termination of the employment contract. However, if the parties to the agreement are ready to terminate the employment relationship earlier, then the three-day work period will not be necessary.

The text of the statement should indicate . For example: “I ask you to fire me for at will before the expiration of the probationary period due to the fact that my qualifications do not correspond to the position held.”

If during the trial period the employer did not manage to terminate the employment contract, then the newcomer automatically remains in his position on a general basis. No registration required additional documents. To dismiss on your own initiative after the end of the verification period, you will need to work not three days, but two weeks.

If, upon taking up the position, a contract was drawn up that did not say anything about a probationary period, then after submitting an application for dismissal, the employee must work for another two weeks at the company. In this situation, it does not matter at all how long the person worked in the company (one week or ten years).

When a person leaves work during the probationary period, the employer must pay him wages (for working days) and compensation for unused vacation. Severance pay is issued only in a situation where this condition is specified in the employment agreement or other internal regulations.

At the request of the employer

During the admission process workplace for the new employee, an employment contract is concluded with him, and a list of requirements and tasks for a probationary period for subsequent admission to the staff is indicated. To successfully complete the testing period, a newcomer must solve all the tasks assigned to him.

If the employer has decided to dismiss the trainee, he must notify him of this three days before the date of the proposed dismissal. The newcomer must be given the appropriate notice in writing. It states the basis for excluding the employee from the company’s employees and indicates the day of cancellation labor agreement.

A sample notice of termination of an employment agreement can be found below:

If the employee successfully passes the test period, he is enrolled in the company's staff. Now the employer can dismiss the employee, but in this case the simplified procedure is not available.

Dismissal of a trainee as having failed the probationary period

If the applicant vacant position failed to prove himself during the probationary period (prove that he can fulfill the job duties assigned to him), then the employer has every right to terminate the employment contract with him. However, you do not have to wait until this period ends. However, it is important that the fact of non-compliance with the vacant position, the incompetence of the employee, is confirmed.

Evidence of negative completion of the procedure for checking the competence of an applicant for a position in the company:

• the applicant’s report on the results of his work activity during the probationary period;
• act on low quality of manufactured products;
• report/memo about the low quality of work performed;
• minutes of the meeting of the special commission competent to evaluate the results of the trial period;
• facts of application of disciplinary measures against a newcomer.

The employer does not have the right to dismiss an intern while he is on official sick leave or on vacation.

Algorithm of actions for an employer to dismiss an intern during a probationary period:

1. Transferring to the dismissed employee a notice in which it will be written that in three days the previously concluded employment contract will be canceled.
2. Issuing an order to dismiss an unsuitable employee. In this case, it is important to familiarize the dismissed person with this order (against signature).
3. Filling out a work book.
4. Carrying out full payroll calculations.

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 wages, are 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 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, 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 in work book employee, a corresponding entry is made (example):

Setting a probationary period for an employee when hiring is not a mandatory procedure. According to Article 70 of the Labor Code, such conditions may be provided for in an employment contract, but the state does not require this. As numerous surveys show, in most cases, employers still prefer to hire newcomers only after a trial period in order to verify their competence, ability to conduct business, and usefulness for the company. But can an employer fire you during a probationary period? Read more about this in today's article.

It is believed that such a period can be useful for the employees themselves. In a short time, they will be able to make a final decision: do they want to stay in this place, or is it not suitable for them. In the case of the latter, the person has the right to notify the employer about this and leave the place without waiting for the end of the period. The employer can also terminate the relationship with the employee before the testing period comes to an end. But if the employee himself is not satisfied with this, he will have the right to ask the judicial authorities to intercede for him.

If the employer does not have a strong evidence base, as well as if there are errors in the paperwork, the court may decide to return the employee to his position or recover funds from the employer for the forced downtime of the dismissed person and the moral damage caused to him.

How long can the probationary period last?

The probationary period can last a maximum of six months. However, such a period, according to the Labor Code, is established only for applicants for leadership positions.

Test period dates:

• up to two weeks, if we are talking about concluding an agreement, according to which the employee will perform his duties for no more than 6 months;
• up to three months if we are talking about a standard employment contract;
• up to 6 months when a person applies for the position of manager, chief accountant or deputy manager.

The inspection period can be extended only if the employee took time off or was on sick leave. At the same time, the Law provides circle of persons who are not entitled to a probationary period. This:

• women at different stages of pregnancy;
• underage;
• young professionals getting a job for the first time after graduating from university;
• employees who took up positions through competition;
• employees with whom a contract is concluded for a period not exceeding two months;
• employees who were transferred from one position to another within the same company or from one employer to another by agreement.

This list is not complete and may be supplemented by regional laws.

If dismissal occurs during the probationary period, the employer is obliged to notify about this 3 days before the break. labor relations. Exactly the same requirements apply to an employee who decides to quit on his own initiative: he will have to work three more days.

What could be the reason for dismissal?

To fire a probationary employee, the employer must have valid reasons. Of course, he can do this on the basis of his own preferences, without relying on the requirements of the law, but in this case he runs a strong risk of losing in court if he is already former employee wants to start litigation.

Reasons for dismissal:

• the employee fails to cope with his duties;
• often plays truant;
• does not comply with safety regulations;
• doesn't follow the rules labor discipline;
• behaves unprofessionally or his behavior discredits the company.

In principle, there could be many more reasons. It is important for the employer to have evidence of the validity of such a decision. The evidence base can be job descriptions signed by the employee, safety rules, the company's charter, reports compiled on the work done, absenteeism reports, complaints from clients or other employees.

No special justification is required for a resigning employee. If he wants to resign, this is his right, which he can use at any time, even during testing periods.

​To fire an employee, the employer must comply with certain rules. The main thing is to collect documents that confirm the validity of the decision to dismiss and the incompetence of the employee. After this, the employer is obliged to send a notice to the employee, in which it is necessary to indicate the exact reasons for the dismissal, and then issue a corresponding decree. A note about the delivery of the notice and the drawing up of the order must be entered in the order registration journal; the employee must put his signature in the journal confirming that he is familiar with the texts of the documents.

Within ten days, all funds due to the employee must be paid. This is not only wages, but also compensation if a person worked more than 15 days, during the allotted vacation, which the dismissed person did not take advantage of, sick leave payments if the employee took time off due to ill health. Compensation is calculated taking into account the time the employee spent at work and his total length of service. The company leaves in its archives a photocopy of the work book of the dismissed person, and the employee receives the book after making entries in it about the reason for the dismissal and the seal of the company. The work book must be handed over only by hand. If the person did not pick it up, he can be sent a notification by mail that he needs to come and pick up his document. Send the book by mail or courier delivery it is forbidden.

After the entire procedure, a notice of dismissal must be placed in the employee’s personal file.

If any of these points were not completed correctly or were not completed at all, the employee will have a better chance of proving wrongful dismissal in court.

What is useful to know

There are a number of features of dismissal during a probationary period that are useful to know for both employers and those hired:

• In this case, a two-week work period is not provided. Only a three-day period is allowed to complete all employment relationships.
• You cannot fire a person while he is on sick leave.
• When dismissing employees who receive material resources or important documents, the employer has the right to establish a procedure for receiving and transferring cases that does not contradict the Labor Code.
• All provisions of the Labor Code regulating dismissal during a probationary period have equal force for both government agencies both enterprises and private ones.

There are many cases in Russian judicial practice when employees wrote complaints against their employers, who, in their opinion, fired them without any particular reason, at their own request. And the court often grants such claims. In some cases, it requires the employer to compensate the person, in others it requires the employee to be reinstated.

A dismissed employee can fight for his rights quite successfully in all those cases where the employer did not pay him the required funds after the probationary period, fired him without serious grounds, or did not familiarize him with job responsibilities or did not notify about dismissal three days before the order was issued.

Searching for a job, as well as recruiting personnel, is a labor-intensive process. Even if the requirements of the vacancy are met by the professional qualities of the candidate, and the proposed job is completely suitable for this specialist, there is no guarantee that the cooperation will necessarily be successful and long-lasting.

What deadline can be set?

Hiring for a probationary period allows you to determine opportunities for further cooperation. According to this period, it may be different in different cases. The following options exist:

No more than 2 weeks;

Probation period 3 months (or less);

Up to six months;

Up to one year.

At the same time, the shortest duration is provided when a fixed-term contract is concluded (up to six months). This also applies to seasonal workers. A probationary period of 2 weeks may be established for them, but no more.

However, it usually lasts longer. In most cases, the probationary period lasts up to 3 months. The Labor Code of the Russian Federation indicates that it can end by agreement of the parties or earlier, but not later. A period of 6 months can be set, for example, for the head of the company, its representative office, branch, chief accountant, as well as their deputies.

In what cases is hiring carried out for a probationary period for the longest period of time? For example, when an employee enters the civil service. How long does the probationary period last in this case? Up to one year. However, if an employee is transferred to a new place from one government agency to another, then the maximum period is six months.

Categories of employees for whom a probationary period cannot be established

The rules listed above do not apply to all potential employees. There are categories of employees for whom a probationary period cannot be established (the Labor Code of the Russian Federation indicates relevant cases). These are pregnant women, candidates under 18 years of age, employees with whom the contract is concluded for 2 months or less. Another case is if a candidate was hired through a competition. In addition, this category includes former students who have received higher, secondary or primary education and who are taking up positions in their specialty for the first time. Also, hiring for a probationary period is impossible for disabled people who were assigned to this position based on the results of a medical examination. Another category is specialists who were invited to this position as a result of transfer to another employer. The last two cases are if a candidate is elected to an elective position, and also if he retires from service (alternative, military).

Why is a probationary period needed?

Hiring for a probationary period upon taking up a position is introduced not only for the future employee, but also for the employer. During this period, both parties have the opportunity to take a closer look at each other and understand whether cooperation should continue. During the test, the employer evaluates the employee’s business qualities, abilities, communication skills, ability to carry out assignments efficiently, suitability for the position held, compliance with the rules established in the company, as well as discipline. During this period, the employee makes a conclusion about the company, his position, salary, responsibilities, management and team.

How is work paid during the probationary period?

The employee who is at the probationary stage is fully covered. Therefore, if the company stipulated in the contract that this period will not be paid, this is a clear violation Russian law. In addition, many employers nowadays deliberately set a lower salary for the test subject, promising to then increase it. The following can be said about this.

Firstly, an employee who is at the probationary stage cannot be limited in wages. His rate must be no less than that provided for this position in the staffing table. Secondly, a company that reduces the salary during the probationary period falls under an article such as discrimination. In the staffing table of a company, for example, there are two positions for a purchasing manager. The first was occupied by an old employee, and the second was invited to a new person with a probationary period. In this case, from the first day of work, the newcomer must have a salary no less than that of an employee who has been working for several years in a similar position.

Legal way to set a lower salary during the probationary period

Nevertheless, almost all companies pay lower salaries to employees during the probationary period. This can be done quite legally by changing, for example, the salary of employees for a newbie position in the staffing table. However, it should be remembered that its size should not be lower than the minimum wage.

A specialist on a probationary period may be paid a bonus, as well as other incentive payments that are specified in the regulations on remuneration and bonuses. The employer is also required to pay the subjects overtime, sick leave, and time off work on holidays and weekends.

Registration of a probationary period

A probationary period is required. An employment contract must be concluded with the employee, and an order to hire the employee is issued on the basis of it. These documents indicate the duration of the test period. The work book does not include the entry “hired for a probationary period”; it only notes that the employee was hired.

Extension of probationary period

It is not prohibited to increase it, but only if the duration of the probationary period does not exceed the norms established by law. For example, if initially it is 1 month, and after this period the employer still has doubts about the candidate’s suitability for this position, the probationary period can be extended to 3 or 6 months if we are talking about the vacancy of a branch manager or chief accountant.

It is impossible to increase its duration without the employee’s consent. Therefore, the employer must justify the decision to extend the probationary period.

The need for written recording of facts of violation of labor discipline by an employee

An employee’s failure to complete tasks in a timely manner, his mistakes, or violation of labor discipline should be documented, and if there are managers, then they should be included as well. Facts certified in this way should be handed over to the employee for review. To confirm, he must sign. If the employee agrees with the shortcomings in the work, then the employment contract is added, and the probationary period is increased. If the employee believes that the claims against him are unfounded and does not give his consent to an additional period, dismissal is allowed, which must be based on written irrefutable evidence.

Rights and obligations that an employee has during the probationary period

They are no different from those that other employees working in this company have. A specialist registered for a probationary period has the following rights:

Receive a salary, bonuses, salary supplements for overtime work, as well as other incentive payments;

Take sick leave, on the basis of which to receive insurance payments during incapacity;

Resign at any time on your own initiative (it is not necessary to wait until the end of the probationary period);

Take a weekend at your own expense or towards a future vacation; however, the employer in this case can refuse leave on legal grounds, if this does not contradict the Labor Code of the Russian Federation, Article 128: for example, if an employee has a child, then he should be given time off without pay for up to five days.

The employee's responsibilities are as follows:

Comply with internal regulations, fire and labor discipline;

Comply with the terms of the contract;

Perform work duties in accordance with the job description.

Dismissal of an employee who has not passed the test period

First of all, you should prepare a notice in writing for the employee in advance, in which you need to indicate the reasons why further cooperation is impossible. They must be documented. This could be an act of disciplinary action, about the employee’s failure to fulfill his job duties, written complaints from clients who interacted with the specialist, or, for example, the minutes of a commission meeting in which the outcome of the probationary period was determined, etc. The notice also indicates the date of the planned dismissal and the preparation of the document. It is made in two copies (for the employee and for the employer).

The next step is to deliver this notice to the employee no later than three days (preferably 4) before the end of the probationary period or the date of his planned dismissal (if the decision to terminate the contract was made much earlier than the end of the probationary period). Please note that if this is not done on time, the employee will automatically be considered to have passed the test.

The next step is for employees to familiarize themselves with the notice and sign it with the date. If those who have not completed the probationary period refuse to sign, the employer draws up a special act. It must be signed by at least 2 witnesses.

The next step is that on the day of dismissal, the employee receives a salary for the days he worked, a work book and compensation for unused vacation, if any.

Termination of the contract by decision of the employee

If a specialist independently decides to terminate the contract before the end of the probationary period, the employer should be notified about this. He must write a letter of resignation, indicating the reason “on his own initiative,” and then the contract is terminated under this article. If employees who have already completed their probationary period are required to notify their employer of their desire to resign two weeks in advance, then an employee undergoing probation must notify him only three days in advance.

Cases in which dismissal is not possible

It should be noted that the dismissal of employees who have not completed the probationary period is equivalent to their dismissal precisely at the initiative of the employer. Therefore, it is necessary to familiarize yourself with the Labor Code of the Russian Federation before removing from office a specialist undergoing a probationary period (Article 81). For example, an employer does not have the right to fire a woman who is pregnant or raising a child under 3 years of age. If he is incapacitated or is on vacation, he is also prohibited from being removed from his position.

Who benefits from a probationary period?

It benefits both the employer and the employee. Thanks to the probationary period, the company can make sure that the candidate has professionalism, or start looking for another specialist. And the employee, in turn, will be satisfied with his new place or begin to look for another. Thus, neither the company nor the specialist will waste additional time looking for another candidate or a new job.

Experts recommend, even if a person at first glance is ideally suited for a position, to conclude an employment contract with him with a probationary period. In this case, it will be possible to evaluate his professional qualities and terminate the contract if he does not suit the employer. Next, let’s take a closer look at what an employee’s probationary period is.

General information

Labor Code with comments to the articles, it quite clearly regulates the procedure for registering a person for a particular position. Personnel selection is often a fairly lengthy process. Typically, hiring is based on the results of an interview. Often, when hiring, he is offered professional tests.

However, even the most careful selection of personnel does not eliminate risk for the employer. The new person may end up being underqualified or underdisciplined. To assess how well he meets the requirements set by the enterprise, it is advisable to establish a probationary period for the employee. To implement this, it is necessary not only to stipulate, but to legally formalize the agreement correctly. The Labor Code with comments to the articles establishes the legal basis for employment with such conditions. However, you need to know some nuances in order to avoid mistakes in practice.

Principles by which a probationary period at work is established

As mentioned above, this period is necessary to test the professional and some personal qualities of a person. Hiring in this case is subject to a number of conditions. These include, in particular:

• A probationary period is established for hired people who have not previously held any position in the enterprise. For example, this applies to cases when a specialist is transferred to a higher position or to another department.
• The probationary period is established until the person begins to perform his duties. This means that before starting activities at the enterprise, an appropriate agreement must be drawn up. It can be a probationary agreement (as a separate appendix) or these conditions are included in the general contract. Otherwise, this agreement has no legal force.

It should be noted that the condition on the application of a probationary period must be present not only directly in the employment contract, but also in the order to enroll a person on the staff. In this case, the future employee must confirm with his signature the fact of familiarization and agreement with these facts. It is not necessary to put a mark on the appointment of a probationary period in the work book.

Legal registration

As stated in the Labor Code, the probationary period is applied only in accordance with the agreement of the parties. The conditions for registration must be documented. The main document is an employment contract with a probationary period. If the conditions are fixed only in the order, then this is considered a violation of the law. In this case, the judicial authority recognizes the conditions for the appointment of the test as invalid.

In addition to the main contract and order, the procedure for registering an employee may be reflected directly in his application for appointment to a particular position. It should be said that the employer’s responsibilities include not only the legally competent execution of the contract and other documents, but also familiarization of the future employee with labor responsibilities, internal regulations of the enterprise, job description. The employee certifies this fact with his signature. This is of particular importance if the person has not completed the probation period. If the employer is forced to dismiss an employee who has not completed the established period, the fact that he is familiar with the duties is used to confirm his inadequacy for the assigned position.

Alternative option

Quite often, employers, instead of fixed-term contract A fixed-term agreement is concluded with the probationary period. In their opinion, such registration of an employee significantly simplifies the situation when a person has not coped with the assigned tasks and should be fired. The period of the fixed-term contract will end and the employee will leave on his own. However, the law establishes certain conditions for concluding such an agreement. Thus, according to Article 58 of the Labor Code, the execution of a fixed-term contract for the purpose of evading the guarantees and rights provided for employees for whom an open-ended contract should be used is prohibited. It is recommended that courts pay special attention to compliance with these conditions when investigating violations.

Resolution of the Plenum of the Supreme Court (Supreme Court) No. 63 (dated December 28, 2006), paragraph 13

If, during the consideration of a dispute about the legality of drawing up a fixed-term agreement, it is revealed that the employee was forced to conclude it, then the court applies the rules of a contract for an indefinite period. If a person appeals to a legal authority or the relevant inspectorate, then the agreement can be recognized as concluded for an indefinite period. In this case, no probationary period is assigned. During the probationary period, a person is subject to the relevant provisions of legislation and other acts that contain the norms of established law, collective agreement, contract, local documents.

Salary

It is considered a violation of the law to establish lower remuneration for an employee during the probationary period in an employment contract. The norms do not stipulate that the salary of a specialist in this case is different. If a conflict situation arises, the employee has the right to receive underpayment in court. On the part of the employer, this issue can be resolved in different ways. In particular, when designing employment contract The amount of payment during the trial period is indicated as permanent. At the end of the period, an additional agreement is signed with the specialist, which establishes an increase in payment. Also, the enterprise may adopt a provision on bonuses. The amount of these additional payments may be determined in accordance with length of service.

Dismissal procedure

During the probationary period, the employee is also subject to guarantees and standards related to the grounds for the employer’s refusal, on his initiative, to refuse the employee’s services. They are provided for in Article 81. An employment contract cannot include additional grounds not established by law. These include, for example, reasons of “expediency” or “at the discretion of management.” These statements are often found in contracts. However, they do not comply with the law.

Vacation

The probationary period is included in the employee's length of service. It gives the right to basic annual paid leave. In case of dismissal during the probationary period or after its completion, despite the fact that the person did not fulfill his duties at the enterprise for six months, he has the right to compensation for the unused vacation period. It is assigned in proportion to the period of his presence at the enterprise as an employee.

Special cases

When drawing up an employment contract, you need to know that the law excludes the possibility of applying a probationary period to a number of categories of persons. These include:

• Elected through a competition for filling a particular position, held in accordance with the law or other regulations ok.
• Women who are pregnant or have dependent children under one and a half years old.
• Persons under 18 years of age.
• Those invited to work by way of transfer from another employer as agreed between the management of the enterprises.
• Persons applying for work under a contract for a period of less than two months and others.

Length of period

A probationary period of 3 months is established in general cases. For managers, chief accountants and their deputies, directors of representative offices, branches and other structural separate divisions– six months, unless otherwise provided Federal law. When drawing up an employment contract for 3-6 months, the probationary period is no more than two weeks.

This period does not include days when the employee was actually absent from the enterprise. This could be temporary disability due to illness, for example. In practice, employers often resort to extending the probationary period specified in the contract. These actions are contrary to the law. If at the end of the period the employer does not make a decision to dismiss, the employee is considered to have passed the test. In some cases, a longer period is provided. It is regulated by Art. 27 Federal Law No. 79 and concerns civil servants.

End of probationary period

Often, after the period expires, the employee continues to work for the enterprise. In this case, he is considered to have passed the test, and further termination of the employment contract is carried out on a general basis. If the employer believes that the person is not suitable for the position, then no additional paperwork is required. In other words, the employee continues to work on a general basis.

Article 71

If the test result is unsatisfactory, the employer has the right to terminate the contract before its expiration. In this case, he should notify the employee about this three days before terminating the contract. The warning must contain the reasons why the employer finds that the person is unsuitable for the position and has failed the test. The employee can appeal this decision in court. In case of unsatisfactory results, the contract is terminated without taking into account the opinion of the trade union body and without paying severance pay. If an employer decides to fire a new employee, then in this case it is necessary to follow a certain procedure and prepare the relevant documents. In particular, a notice of unsatisfactory result is drawn up. It must be in two copies - for the employee and the manager. The document is handed over to the employee against signature.

Actions of the employer in case of refusal to accept notice

The employee may refuse to accept the paper. In this case, the employer must take certain actions. In particular, a corresponding act is drawn up in the presence of several employees of the enterprise. Employee-witnesses confirm with their signatures the fact of delivery of the document and refusal to accept it. A copy of the notice may be sent by mail to the employee's home address. Sending is carried out by registered mail. It must also come with a receipt.

In this case, it is very important to comply with the deadline established in Article 71: a letter notifying about dismissal must reach the post office no later than three days before the completion of the test assigned to the employee. The date of departure is determined by the stamp on the receipt and the delivery receipt returned to the employer. The document on termination of the contract must contain all the necessary characteristics: date and reference number, signature of an authorized person, stamp of the seal that is intended for issuing such papers.

Legally correct formulation of reasons for dismissal

It must be based on documents that confirm the validity of the decision made by the employer. As shown judicial practice, in the process of considering disputes about dismissal due to an unsatisfactory test result, the employer is required to confirm the fact that the employee is not suitable for the position. To do this, moments should be recorded when a person did not cope with the task or committed other violations (for example, job description, internal regulations, etc.).

These circumstances must be documented (protocoled), indicating the reasons if possible. At the same time, the employee should be required to provide written explanations of his actions. Experts believe that when dismissing under Article 71, it is necessary to provide evidence of the employee’s professional inadequacy for the position held. If he violates internal discipline (played truant or in some other way showed a negligent attitude towards activities at the enterprise), he should be dismissed under the relevant paragraph of Article 81. The documents with which the employer confirms the validity of the dismissal may be:

• Act on violation of discipline.
• A document confirming the non-compliance of the quality of work with the requirements and production and time standards adopted at the enterprise.
• Explanatory notes from the employee about the reasons for non-fulfillment of tasks.
• Customer complaints in writing.

Assessment of business qualities

It has a direct dependence on the specifics and scope of the enterprise. Based on this, conclusions about the test results can be based on various data. For example, in the field of production, in which the result of activity is an object (product), the level of quality can be determined quite clearly. If the enterprise is engaged in the provision of services, then the assessment business qualities employee is carried out in accordance with the number of customer complaints.

There are certain difficulties in the field of intellectual activity. In this case, to evaluate the results, the quality of execution of instructions, compliance established deadlines, fulfillment of the total scope of tasks, compliance with professional qualification standards. The new employee’s immediate supervisor is responsible for preparing and sending these documents. The procedure for dismissing an employee, therefore, requires a certain formality from the employer. However, the employee can legally appeal the decision in any case.

Employee's right to terminate the contract

An employee can use it if during the test he understands that the proposed activity is not suitable for him. He must notify management of his decision three days in advance. The notification must be in writing. This rule is of particular importance for employees. This is because potential employers would like to know the reasons why the applicant left his previous employer so quickly.

In conclusion

The legislation quite precisely defines the conditions under which the application of a probationary period is allowed. Due to the fact that a new employee is often considered a party without social protection within the framework of these relations, the rules of law establish certain guarantees for him. At the same time, the procedure for dismissing an employee due to unsatisfactory results of the trial period is quite formalized. The legislation defines the right of an employee to appeal the decision of the management of the enterprise in court.

In such cases executive body will carry out a thorough check of the legality of establishing a probationary period, legal literacy of registration necessary documentation. Of no small importance will be compliance by the management of the enterprise with all legal aspects within the framework of these relations. Based on this, both the employer and the applicant himself have the right to personally determine for themselves the feasibility of applying and the conditions for passing a probationary period at the enterprise. As practice shows, cases conflict situations are noted less frequently where selection is carried out based on the results of several stages of interviews.