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
The Labor Code, with comments to the articles, 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 period 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 legally competent execution of the contract and other documents, but also familiarization of the future employee with job responsibilities, internal regulations at the enterprise, and 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, instead of an open-ended contract with a trial period, employers enter into a fixed-term agreement. 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 applies to a legal authority or the relevant inspection, 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 drawing up an employment contract, the amount of payment for 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:
- Those elected through a competition for filling a particular position, conducted in accordance with the procedure established by law or other regulations.
- Women who are pregnant or have dependent children under one and a half years old.
- Persons under 18 years of age.
- 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 by 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 judicial practice shows, in the process of considering disputes about dismissal due to unsatisfactory test results, the employer is required to confirm the fact that the employee is not suitable for the position. To do this, moments when a person failed to cope with the task or committed other violations (for example, job descriptions, internal regulations, etc.) must be recorded.
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 company is engaged in the provision of services, then the assessment of the employee’s business qualities 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 assignments, compliance with established deadlines, fulfillment of the total scope of tasks, and compliance with professional qualification standards are recorded. 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 enterprise management in court.
In such cases, the executive body will carefully check the legality of establishing a probationary period and the legal literacy of the 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 of conflict situations occur less frequently where selection is carried out based on the results of several stages of interviews.
Only lazy employers do not currently establish a probationary period for employees. Even if its use is unlawful, the employer, just in case, prefers not to remove it from the standard form of the employment contract. At the same time, only a few have learned to correctly use this condition for parting with employees.
The possibility of establishing a test when hiring is provided for in Art. 70 Labor Code of the Russian Federation. Testing, according to this article, means checking an employee to determine his compliance with the assigned work.
Test Establishment Basics
When fixing the condition of a probationary period in an employment contract, you should remember the restrictions and prohibitions defined by the Labor Code of the Russian Federation. Thus, a hiring test is not established for (Part 4 of Article 70 of the Labor Code of the Russian Federation):
— persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
— pregnant women and women with children under the age of one and a half years;
- persons under the age of eighteen;
— persons who have received secondary vocational education or higher education in state-accredited educational programs and who are entering work for the first time in the acquired specialty within one year from the date of receiving vocational education at the appropriate level;
— persons elected to an elective position for paid work;
— persons invited to work by way of transfer from another employer as agreed between employers;
— persons concluding an employment contract for a period of up to two months;
- other persons in cases provided for by the Labor Code of the Russian Federation, other federal laws, and a collective agreement.
If a probationary period, in violation of the prohibition, is established by an employment contract, then it should be borne in mind that the probationary condition will not be applied, and the dismissal of an employee on the basis of an unsatisfactory test result (Part 1 of Article 71 of the Labor Code of the Russian Federation) in the described situation will be recognized by the court illegal.
In addition, it should be remembered that the law establishes restrictive (maximum) test periods (Parts 5 and 6 of Article 70 of the Labor Code of the Russian Federation):
- three months for all employees,
— six months for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations (unless otherwise established by federal law),
- two weeks - when concluding an employment contract for a period of two to six months.
At the same time, the period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.
The absence of a test clause in the employment contract means that the employee was hired without a test (Part 2 of Article 70 of the Labor Code of the Russian Federation). In the case where an employee is actually allowed to work without drawing up an employment contract (Part 2 of Article 67 of the Labor Code of the Russian Federation), the probationary condition can be included in the employment contract only if the parties formalized it in the form of a separate agreement before starting work. The literal interpretation of this norm does not allow an employer who “forgot” to establish a probationary period to establish it by an additional agreement to the employment contract already in the process of employment relations.
FYI.During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations (Part 3 of Article 70 of the Labor Code of the Russian Federation). The literal interpretation allows us to draw an unambiguous conclusion: the amount of wages cannot be reduced during the probationary period. In fact, violation of this rule is allowed by most employers.
Registration of test conditions
Drawing up the test conditions itself does not present any particular difficulties. The text of the employee’s employment contract should include the following provision: “...The employee is given a probationary period of three months.”
The inclusion of this phrase in the employment contract provides certain benefits to both parties to the employment relationship. This allows the employer, before the expiration of the test period, to terminate the employment contract with the employee if the test result is unsatisfactory in the manner prescribed by Part 1 of Art. 71 Labor Code of the Russian Federation.
FYI.During the probationary period, the employee is subject to all the norms of the Labor Code of the Russian Federation, including any grounds for dismissal provided for by the Labor Code of the Russian Federation and suitable for the specific current situation. That is, an employee can be fired for absenteeism (subclause “a”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation), and due to staff reduction (clause 2, part 1, article 81 of the Labor Code of the Russian Federation), and for other reasons .
An employee, if there is a probationary clause in the employment contract, will be able to notify the employer of his dismissal within a shortened period. So, if during the probationary period he comes to the conclusion that the work offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, warning the employer about this in writing three days in advance (and not two weeks in advance, as this is required by Article 80 of the Labor Code of the Russian Federation upon dismissal at one’s own request).
Please note that the reason for dismissal is stated as general - “at one’s own request”. The fact that the work did not meet the employee’s expectations can be kept silent. In any case, a notice period of three days rather than two weeks will apply.
Registration of termination of an employment contract
With registration of dismissal on the basis provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation - as a result of an unsatisfactory test, many employers have problems. To minimize the risk of dismissal being declared illegal on the above grounds, we will go through all the stages of this procedure together.
For convenience, consider the following situation.
A new employee was hired at the company, and an employment contract was concluded with him on February 17, 2014. According to the terms of the employment contract, the employee must begin work on this day. The employment contract provides for a probationary period of three months. According to the new employee’s immediate supervisor, the level of knowledge, skills, and attitude to work do not meet the employer’s requirements. This official reported this to the director of the enterprise at a planning meeting on April 30, 2014 and proposed to initiate a dismissal procedure as a result of an unsatisfactory test result. At the same time, the employee’s manager explained that the new employee was absent from work from 03/13/2014 to 03/17/2014 due to illness (a certificate of incapacity for work was presented).
1. We count the deadlines
First you need to find out the end date of the probationary period. Under the conditions of the situation under consideration, the last day of the probationary period falls on 04/12/2014. However, due to the employee’s absence from work from 03/13/2014 to 03/17/2014, the test period must be extended by five calendar days, that is, until 04/17/2014.
Having established the end date of the probationary period, we determine the last date on which the employee must be given notice of an unsatisfactory test result. In accordance with Part 1 of Art. 71 of the Labor Code of the Russian Federation, notification should be submitted no later than three days before the end of the probationary period.
According to Art. 14 of the Labor Code of the Russian Federation, the period of time with which the Labor Code of the Russian Federation associates the emergence of labor rights and obligations begins with the calendar date that determines the beginning of the occurrence of these rights and obligations. The period of time with which the Labor Code of the Russian Federation connects the termination of labor rights and obligations begins the next day after the calendar date that determines the end of the labor relationship. Terms calculated in years, months, weeks expire on the corresponding date of the last year, month or week of the term. The period calculated in calendar weeks or days also includes non-working days. If the last day of the period falls on a non-working day, then the end of the period is considered to be the next working day following it.
In our situation, the last day to serve notice of upcoming dismissal will be 04/14/2014.
Question. Is it possible to begin the procedure for dismissing an employee before the end of the probationary period if the employer comes to the conclusion that the employee did not complete the probationary period?
Start the dismissal procedure under Part 1 of Art. 71 of the Labor Code of the Russian Federation as a result of an unsatisfactory test result is possible at any time. However, it should be borne in mind that by that time a sufficient amount of documented evidence should have been collected that the employee did not pass the test.
2. We collect evidence of an unsatisfactory test result
Such grounds may include reports/memos from the manager and other services, acts of internal investigations of employee misconduct, acts of inspections recording erroneous actions of the employee, and other written evidence.
3. We issue a notification
The notification should clearly and clearly describe the reasons why the test result was found unsatisfactory (Example 2).
delivery
JSC "Speed Delivery"
N. A. Kozlova
Moscow, st. Pirogova, 7, apt. 24
Notification
Dear Nikolai Alexandrovich!
We notify you that the test result established by clause 2.5 of the employment contract concluded between you and OJSC “Speed Delivery” on February 17, 2014 (No. TD-14) was recognized by the employer as unsatisfactory for the reasons stated below.
In accordance with the official investigation report dated March 25, 2014, based on the results of an inspection during the period of your work from February 17, 2014 to March 24, 2014, a violation of clauses 4.1 and 4.1.2 of the Rules for the delivery of items to addressees, approved by order dated October 7, 2011 N 417, was revealed, and clause 3.1 of the job description of the leading specialist of the delivery department, approved on October 30, 2012, namely: the shipment dated February 25, 2014 N 41 was delivered to the addressee 14 hours late, the shipment dated February 26, 2014 N 54 was delivered 2 hours late, departure dated 03/06/2014 N 62 was delivered 4 hours late.
Due to the unsatisfactory result of the test, the management of High-Speed Delivery OJSC made a decision to terminate your employment contract dated February 17, 2014 No. TD-14 under Part 1 of Art. 71 of the Labor Code of the Russian Federation (if the test result is unsatisfactory) 05/16/2014.
I notify you that before the date of dismissal (05/16/2014) you retain the right to terminate the employment contract at your own request.
Director of OJSC "Speed Delivery" Smirnov N. A. Smirnov
If the employee refuses to sign the receipt of the notification (or refuses to read it), it is necessary to draw up a report about this (Example 3).
Open Joint Stock Company "Speed Delivery"
Act
| 12.05.2014 | N 15 |
Moscow
On refusal to put a signature on the acquaintance
We, the undersigned: director Smirnov N.A., deputy director Tkachev E.N., chief accountant Nosov N.S., head of the personnel department Ivanova N.K., have drawn up this act on the following:
Today, May 12, 2014, at 12:30 p.m. in the office of the director of High-Speed Delivery OJSC, N.A. Smirnov, the leading specialist of High-Speed Delivery OJSC, N.A. Kozlov, was presented with a notice dated 12.05 for review and signing upon receipt. 2014 N 45 about unsatisfactory test results. After familiarization, Kozlov N.A., in the presence of all the undersigned officials, signed in receipt of the specified notification and refused to sign for familiarization with it.
Smirnov N. A. Smirnov
Tkachev E. N. Tkachev
Nosov N. S. Nosov
Ivanova N.K. Ivanova
4. We give the employee a choice
In most cases, upon receiving such notice, employees write a letter of resignation of their own free will. The law does not prohibit, if there are several grounds for dismissal, choosing one of them, including dismissing an employee on his own initiative.
Question. The employee was given a notice of unsatisfactory test result on the verge of deadlines. Immediately after reading it, he wrote a letter of resignation of his own free will, but indicating the deadline for dismissal in two weeks, as provided Art. 80 Labor Code of the Russian Federation. However, the date of dismissal will already go beyond the probationary period. How to protect yourself from the risk of an employee withdrawing his application for dismissal immediately after the end of the probationary period?
You can only protect yourself from such a tricky turn of the situation:
- asking the employee to rewrite the application indicating the date of dismissal, which is included in the probationary period;
— by terminating the employment contract by agreement of the parties on the “required” date;
- by terminating the employment contract on a previously planned basis, provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation, on the date specified in the notice, despite the presence of the employee’s resignation letter.
5. Formalize the dismissal
The dismissal procedure in this case is standard.
Step 1. On the day of dismissal, you must issue a dismissal order (the project can be prepared in advance).
FYI.You have the right to use the unified form N T-8, approved by Decree of the State Statistics Committee of the Russian Federation dated 01/05/2004 N 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment.” Despite the fact that from 01/01/2013 the unified forms are no longer mandatory for use, they provide the greatest information content and for many employers remain the most convenient due to their versatility and familiarity. However, do not forget that they must be approved by order of the company.
Step 2. Then the employee must be familiarized with the order under his personal signature or an appropriate entry must be made on the order (instruction) in the case where the order to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under his signature (Part 1 of Article 84.1 Labor Code of the Russian Federation).
Step 3. Make a full settlement with the employee in accordance with the settlement note (Article 140 of the Labor Code of the Russian Federation).
Step 4. Issue to the employee copies of documents, including a 2-NDFL certificate, if there is his application, a certificate of the amount of earnings for the two calendar years preceding the year of termination of work (clause 3, part 2, article 4.1 of the Federal Law of December 29 .2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”). The certificate form was approved by order of the Ministry of Labor of Russia dated April 30, 2013 N 182n.
Step 5. Record the dismissal in the work book. According to Art. 84.1 of the Labor Code of the Russian Federation, an entry in the work book about the basis and reason for termination of the employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law and with reference to the relevant article, part of the article, paragraph of the article of the Labor Code of the Russian Federation or other federal law.
Step 6. Complete the remaining personnel documents to record labor relations:
— employee’s personal card (most employers continue to use the unified form N T-2). It is necessary to obtain the employee's signatures on the card in certain places provided by the form;
— notice of termination of the employment contract (dismissal), sent to the military registration and enlistment office within two weeks from the date of dismissal. The employee’s signature is not required on it (Methodological recommendations for maintaining military records in organizations, approved by the General Staff of the Armed Forces of the Russian Federation dated April 11, 2008).
Step 7. Issue a work book to the employee. The issuance is carried out under the personal signature of the employee, indicating the date of receipt in the journal of the movement of work books and inserts in them (Example 5). The form was approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions for filling out work books.”
Appendix No. 3
TO Resolution Ministry of Labor of Russia dated October 10, 2003 N 69
Book of movement of work books and inserts in them
| N p/p | Date of hiring, completion of the work book or insert in it | Last name, first name and patronymic of the owner of the work book | Series and number of the work book or its insert | Position, profession, specialty of the employee who handed in the work book or for whom the work book or insert in it was filled out | Name of the place of work (indicating the structural unit) where the employee was hired | Date and number of the order (instruction) or other decision of the employer on the basis of which the employee was hired | Signature of the responsible person who accepted or filled out the work book | Received for completed work books or inserts in them (rub.) | Date of issue of the work book upon dismissal (termination of the employment contract) | Employee's signature when receiving a work book | ||
| Number | Month | Year | ||||||||||
| 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 |
| 1 | 09 | 01 | 2014 | Kulikov Anton Vladimirovich | Series - TK-IV, N 2457454 | Specialist | 09.01.2014 | Signature | ||||
| 2 | 09 | 01 | 2014 | Nazaridze Turam Davidovich | Series - TK-II, N 5574322 | Leading specialist | JSC "Speed Delivery", delivery service | 09.01.2014 | Signature | |||
| 3 | 17 | 02 | 2014 | Kozlov Nikolay Alexandrovich | Series - TK-IV, N 8604301 | Leading specialist | JSC "Speed Delivery", delivery service | 17.02.2014 | Signature | 150 | 16.05.2014 | Kozlov |
If it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for it or agree to send it by mail. From the date of sending the specified notification, the employer is released from liability for the delay in issuing the work book (Article 84.1 of the Labor Code of the Russian Federation).
Mistakes when terminating an employment contract
An analysis of practice has shown that the main mistakes in dismissal on this basis are:
1) failure to comply with the warning period or lack of warning at all. The employer must notify the employee of termination of the employment contract on this basis no later than three days in advance;
2) failure to comply with the written form of the warning;
3) ignoring the legislator’s requirement to indicate the reasons that served as the basis for recognizing this employee as having failed the test. The employer's statement about an unsatisfactory test result cannot be unfounded; it must be supported by documents;
4) incorrect classification of actions/inactions as the reason for the employee’s unsatisfactory test result. For example, if you hired a driver without including in his duties washing the entrusted car, then his failure to perform this function in no case can be regarded as evidence of an unsatisfactory test result;
5) termination of the employment contract on the above grounds after the expiration of the probationary period.
All specified requirements for registration are provided for in Part 1 of Art. 71 Labor Code of the Russian Federation. Despite this, the number of employers forced to reinstate employees dismissed in violation of these requirements is not decreasing.
Judicial practice. An employee dismissed under Part 1 of Art. 71 of the Labor Code of the Russian Federation, was reinstated by the court. Considering the case, the court came to the conclusion that the defendant did not comply with the dismissal procedure, and did not indicate specific reasons that served as the basis for recognizing the employee as having failed the test, which is a gross violation of labor legislation. The right to evaluate the employee’s test results belongs to the employer, who during the probationary period must determine the employee’s business and professional qualities. Therefore, when dismissing an employee as having failed the test, the obligation to prove the fact of his unsatisfactory work rests with the employer.
However, the defendant did not provide sufficient and convincing evidence to confirm the facts set out in the annex to the employee’s notification about the unsatisfactory test result. It does not follow from the evidence presented how the plaintiff’s level of professionalism and the quality of her performance of her duties were assessed. According to the court, the defendant did not provide evidence convincingly indicating that the plaintiff was improperly fulfilling her official duties. Thus, the court came to the correct conclusion that there were no grounds for deeming the employee’s test results unsatisfactory (ruling of the St. Petersburg City Court dated October 14, 2013 N 33-15722).
* * *
It should be remembered that upon dismissal under Part 1 of Art. 71 of the Labor Code of the Russian Federation, the most important thing is compliance with the dismissal procedure. Moreover, it will be legal only if there is evidence of unsatisfactory test results for the employee.
Even if the employer tries to comply with all the requirements of the law, as practice shows, he is not immune from the reinstatement of the employee. If the court establishes specific circumstances, the court may conclude that the employer violated the dismissal procedure, despite the fact that the employee’s actions may show signs of abuse of rights (for example, silence about the presence of an illness and an open sick leave).
A. Polyanina, leading legal consultant of the branch of Sberbank of the Russian Federation, graduate student of RGSU
Searching for a job, like finding a suitable employee for a company, is a long and complex process that requires a responsible approach from potential employers and employees. Choosing an appropriate place of work and hiring qualified personnel implies a certain amount of risk on both sides. The possibility of establishing a probationary period, regulated by labor legislation, is intended to help the employer determine how well the new employee meets the requirements set by the company, and the employee, in turn, to assess the compliance of the proposed job with his interests and expectations and, if the result is negative, to quit, notifying the employer three days in advance. in two weeks as a general rule.
Therefore, in order to avoid misconceptions, it is especially important to consider the establishment of a probationary period only as a right for both the employer and the employee. The implementation of this right is associated with a large number of mandatory formalities, legal subtleties, as well as not entirely accurate wording of the law itself. Thus, it would be advisable, as the main purpose of establishing a probationary period, to indicate in the Labor Code article not only the verification of the employee’s compliance with the assigned work, but also the compliance of the “work” with the employee’s requirements.
Views on the use of probation have changed relatively little since the days of Soviet legislation. The timing of the test has changed; a circle of persons who are not subject to a probationary period. A novelty of the Labor Code of the Russian Federation is the right of an employee during the probationary period to terminate an employment contract at his own request with three days’ notice to the employer. According to Soviet labor legislation (the Labor Code in force from 1971 to 2002), a probationary period is a check of the compliance of a worker or employee with the work assigned to him, determined by agreement of the parties when concluding an employment contract. The test period could not exceed 1 week for workers, 2 weeks for employees (except for responsible employees) and 1 month for responsible employees.
When hiring workers subject to certification, research, design, design, engineering, technological organizations and research departments of universities may be subject to a probation period of up to 3 months, and in some cases – up to 6 months. The Labor Code excluded the establishment of tests, along with other categories of citizens, also for disabled veterans of the Patriotic War sent to work on account of special armor. The sole purpose of the hiring test was to identify the compliance of the employee’s professional training and business qualities with the requirements of the position.
Meanwhile, the provisions of modern labor legislation on testing for employment are fraught with many uncertainties, problems and barely visible nuances. The establishment, completion and results of the probationary period require not only competent execution from the employer, but also considerable legal awareness of the hired employee in order to prevent the use of his labor for personal gain. This, of course, requires a careful reading of the relevant articles of the Labor Code.
Article 70. Employment test
When concluding an employment contract, by agreement of the parties, it may include a provision for testing the employee in order to verify his compliance with the assigned work.
The absence of a probationary clause in the employment contract means that the employee was hired without a trial. In the case where an employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), the probationary condition can be included in the employment contract only if the parties formalized it in the form of a separate agreement before the start of work.
During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, and local regulations.
A hiring test is not established for:
– persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
– pregnant women and women with children under the age of one and a half years;
– persons under the age of eighteen;
– persons who have graduated from state accredited educational institutions of primary, secondary and higher vocational education and are entering work for the first time in the acquired specialty within one year from the date of graduation from the educational institution;
– persons elected to an elective position for paid work;
– persons invited to work by way of transfer from another employer as agreed between employers;
– persons concluding an employment contract for a period of up to two months;
– other persons in cases provided for by this Code, other federal laws, and a collective agreement.
The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.
When concluding an employment contract for a period of two to six months, the trial period cannot exceed two weeks.
The probationary period does not include the period of temporary incapacity for work of the employee and other periods when he was actually absent from work.
Article 71. Result of employment test
If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the employee before the expiration of the test period by warning him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. The employee has the right to appeal the employer's decision in court.
(as amended by Federal Law No. 90-FZ of June 30, 2006)
If the test result is unsatisfactory, the employment contract is terminated without taking into account the opinion of the relevant trade union body and without payment of severance pay.
If the probation period has expired and the employee continues to work, then he is considered to have passed the test, and subsequent termination of the employment contract is allowed only on a general basis.
If during the probationary period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request by notifying the employer in writing three days in advance.
Among the obvious, understandable and familiar to any personnel officer, the legal requirements regarding the probationary period are the following.
Firstly, the test is established only by agreement of the parties with mandatory inclusion in the text of the employment contract. Secondly, this period should not exceed three months. An exception is made only for heads of organizations, chief accountants and their deputies, as well as for heads of branches, representative offices and other separate structural divisions. Testing the business and professional qualities of these workers can last up to six months. In some cases, a longer probationary period is established, in particular for civil servants (Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation” states that for a citizen hired for the first time to a public position, including based on the results of a competition of documents, or for a civil servant upon transfer to a public position of another group or other specialization, the trial is established for a period of 3 to 6 months, that is, no less than 3 and no more than 6 months).
Thirdly, there is a circle of people to whom the employer does not even have the right to offer a probationary period. These are pregnant women, women with children under one and a half years old, persons under 18 years of age, employees invited to work as a transfer from another employer, as well as young specialists entering work for the first time in their specialty within one year from the date of completion of their educational institutions, persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms, persons who have entered into an employment contract for a period of up to two months. Fourthly, if the employee’s professional qualities turn out to be unsatisfactory, the organization has the right, with three days’ notice, to terminate the employment contract with him without taking into account the opinion of the trade union and without paying severance pay. Fifthly, periods of absence, including vacation, temporary disability and others, are not counted towards the probationary period.
However, not everyone who is affected in one way or another by the rules on the probationary period goes deeper into their understanding. Some difficulties arise in applying these norms in practice, which leads to the emergence of conflict situations. It is extremely necessary to pay attention to moments that are often hidden from “non-professional” eyes.
1. It is known that a probationary period can be established only by mutual expression of will; therefore, the most important circumstance should be the consent of the employer and employee when concluding an agreement on a probationary period or an employment contract that stipulates the conditions for completing the probationary period. The inclusion of probationary period provisions in the employment order in no case cancels, but rather supplements, the employment contract or probation agreement. But at the same time, the absence in the hiring order (instruction) of an indication of establishing a probationary period for the employee indicates the employer’s unilateral refusal to establish a probationary period. The issuance of this order is permitted by labor legislation, since this improves the employee’s position in comparison with the concluded contract.
2. If an employee refuses to test his professional qualities (and this is quite possible from the point of view of the law), no one has the right to oblige him equally and refuse to hire him. Otherwise, this may be considered an unreasonable refusal to hire, and the applicant will have a reason to go to court.
3. It is especially important that an employment contract with the condition of establishing a probationary period is concluded before the accepted employee is actually allowed to work. When an employee begins his work duties, the terms of the employment contract (even without its practical drafting) between him and the employer, which does not contain a probationary provision, are fulfilled.
In case hiring on the basis of an application by the employee and an order for employment with a probationary period, the employee is considered to be hired without a probationary period, since when hired, the employee did not consent to the establishment of a trial. Consequently, the employee is considered to be hired without a trial, and the employer can fire him only on general grounds.
4. The employment contract must contain clear indications of the duration of the probationary period. Their absence invalidates the probationary period, since the very concept of a period implies a certain period of time.
5. The probationary period is established only before the start of work, and not for any period desired by the employer.
Extension of the test period agreed upon at the beginning is not permitted.
6. An employee’s salary during the probationary period should not be reduced. Article 135 of the Labor Code of the Russian Federation emphasizes that the terms of remuneration determined by the employment contract cannot be worsened in comparison with current legislation. The probationary period should be used to test the employee's qualifications, and not as a means for the enterprise to save labor costs.
7. The law defines the circle of persons for whom the employer does not have the right to establish a probationary period, even if they voluntarily express their will. An obstacle to establishing a probationary period is, firstly, the act of electing an employee through a competition held only on the basis of a federal or regional law, and not any other act. It is assumed that if the results of work are unsatisfactory, such an employee can simply be re-elected by the meeting of participants. Secondly, a medical document confirming the presence of pregnancy, which can be presented during the probationary period. In the latter case, he is obliged to issue an order to release the employee from the probationary period. Document confirming that the employee has a child under the age of one and a half years (passport, birth certificate). Thirdly, the accepted employee is a minor. Fourthly, a document on primary, secondary or higher vocational education and employment, corresponding to the received vocational education, for the first time within one year from the date of graduation.
Fifthly, documents confirming election to an elected paid position. Sixth, an invitation to a new job, which is confirmed by a letter from the employer with a request to release the employee to another job in the order of transfer, as well as an entry in the employee’s work book about his dismissal under paragraph 5 of Article 77 of the Labor Code of the Russian Federation in connection with a transfer to another employer and/ or an order for his dismissal if he loses his work book. Seventh, an employment contract for a period of up to two months.
The list of these cases is not exhaustive and can be supplemented by adopting a collective agreement indicating additional categories of citizens who are prohibited from establishing a probationary period.
8. A probationary period of up to 6 months, in addition to the head of the organization, his deputies, the chief accountant and his deputies, can also be established for the head of a branch, representative office or other separate structural unit.
Thus, in accordance with civil legislation (Article 55 of the Civil Code), separate structural divisions are branches and representative offices of a legal entity. This means that a test period of up to 6 months can be set for the heads of only these structural divisions, and not for the head of a workshop, department, sector and other similar structural divisions.
9. The test is established only for employees being hired, and not for those already working at the enterprise, for example, when transferring to a higher position.
10. The entire period of the probationary period is included in the length of service, which gives the right to annual basic paid leave. That is, if an employee is dismissed during the probationary period, the employee is paid compensation for unused vacation in proportion to the time worked in the company.
11. The most common mistake is a lack of understanding of the essence of unsatisfactory test results on both the part of workers and employers.
Labor legislation provides for a probationary period as a test of the employee’s professionalism, and the decision to dismiss, accordingly, must be reasoned, correct, objective and have a clear evidence base.
Thus, the level of theoretical and practical knowledge and skills in the relevant profession, specialty, qualifications, ability to work with clients and other professional knowledge and skills necessary to perform this work, as well as non-personal qualities, discipline and compliance with the so-called corporate culture are tested. Moments when an employee could not cope with the assigned work, facts of improper performance of a job function, failure to meet production standards, and non-compliance with time standards must be recorded. In addition to the fact that these circumstances are documented and recorded, the employee himself must be required to provide written explanations about the reasons for the violations he committed. Justification for dismissal due to unsatisfactory results of the probationary period may include: a document confirming the non-compliance of the work with production standards and time standards, certificates of release of defects, written complaints from clients, contractors, explanations of the employee, testimony of witnesses.
The text of an employment contract cannot include a condition for dismissal at the employer’s discretion; this is contrary to the law. It is especially important to note that the employer does not have the opportunity to dismiss an employee due to violation of labor discipline, since it does not reflect a conclusion about his professionalism. In this case, he must be dismissed on the basis of the relevant norm of the Labor Code of the Russian Federation. It is understood that with a conscientious attitude to work and the absence of guilt on the part of the employee, he is not able to fully perform his job duties.
During the testing period, the employee must be provided with all the necessary conditions for normal work and safe working conditions (serviceable equipment, provision of raw materials, transport, telephone), otherwise all references to the employee’s improper business qualities will have no force. In the event of a dispute, the employer will be required to document such arguments.
In any case, when making claims against an employee regarding the performance of his duties, he must be familiarized (against signature) with the contents of the job description and other local regulations.
12. The employer has the right to decide that the employee is not suitable for the assigned work only during the probationary period. However, very often there is a failure to comply with the deadline and form of warning the employee about the upcoming dismissal.
By law, notification of an unsatisfactory test result must be made in writing in two copies: one for the employee, the second for the employer, and announced to the employee under his personal signature three days in advance.
It must be remembered that the period of time associated with the termination of labor rights and obligations begins the next day after the calendar date that determines the end of the labor relationship (Article 14 of the Labor Code of the Russian Federation). The dismissal of an employee cannot be made earlier than the fourth day from the date of delivery of the notice. The written warning itself must contain a clearly stated reason for dismissal, based on documents, date, reference number, signature of an authorized person, and seal.
13. In case of refusal to familiarize yourself with the notification, a corresponding act is drawn up. Otherwise, the employer will not have evidence that at a certain time, in a certain place and in the presence of certain persons, the employee was asked to familiarize himself with the notice of the results of the probationary period. The act must contain specific circumstances of both the provision of the notification itself and the drawing up of the act: place (office address, office number, etc.); time (date, hour, minutes).
Such an act must be signed by employees, preferably uninterested ones, for example, from various divisions of the enterprise, and not by the employee’s immediate superiors or subordinates, with a mandatory decoding and indication of positions. A copy of the notice can be sent to the employee's home address by registered mail with return receipt requested.
The letter must be submitted to the postal authority at least three days before the expiration of the probationary period established for the employee, which is confirmed by the postmark on the receipt and the notification of delivery of the letter returned to the employer.
14. During the probationary period, the employee is subject to all provisions of federal laws, other regulatory legal acts, local acts, as well as collective agreements and contracts, provided that they contain labor law norms, including norms and guarantees regarding the grounds for dismissal at the initiative of the employer.
For example, if an employee hired on a probationary period is subject to dismissal due to a reduction in the number or staff of employees with payment of severance pay and two months’ notice, or due to disciplinary action, dismissal must be made in accordance with the relevant articles of the Labor Code of the Russian Federation.
Methods for recording test results are determined by the characteristics of a particular production and the nature of the worker’s work. For some organizations, it may be recommended to use a plan for the employee to pass the test, which is drawn up by his immediate supervisor. It sets out each work task, deadlines and order of completion, evaluates the employee’s actions. Subsequently, reasonable feedback is given on the results of the probationary period. All this makes it easier to justify the employer’s decision.
It should be noted that dismissal due to an unsatisfactory test result has a number of difficulties and uncertainties regarding evidence of the employee’s inadequacy for the work performed, and the procedure and timing of completion. There is a need to legislatively regulate the dismissal procedure on this basis for better application of these norms in practice.
Nevertheless, establishing a test when accepting a job for each of the parties to the employment relationship allows you to find out in the shortest possible time and without unnecessary formalism how well they correspond to each other’s expectations and capabilities.
An employee is the main driving mechanism of every enterprise: from a small company to a large corporation. The functioning of the entire organization depends on the quality of his work. In the process of searching for suitable candidates, a significant portion of applicants are eliminated for various reasons. To assess the professional qualities of a prospective employee, it is necessary to see him in action. It is for these purposes that a probationary period is provided for in the Labor Code (hereinafter in the article - the Code).
What do you need to know about the probationary period?
A probationary period may be issued to test candidates for compliance with the stated requirements. Its duration should not exceed three months. Moreover, there is one more limitation - for work that lasts from two to six months, tests are not recommended. If it is impossible to do without them, then it is permissible to arrange for their duration to be no more than two weeks.
Article 70 of the Code contains a list of persons for whom a probationary period of six months is possible. Among them:
- heads of enterprises and organizations,
- heads of structural and separate divisions, branches of organizations and enterprises,
- chief accountants and their deputies.
When passing the tests, periods of incapacity or actual absence from work for any reason are not taken into account. If the employment contract does not indicate a probationary period, then it is considered that the employee was hired without it. During the testing period, the employee is obliged to comply with the standards established in labor legislation. It is also necessary to take into account that there are some categories of persons for whom a probationary period is not established.
Restrictions on the application of the probationary period
When applying for certain citizens to work, simplified conditions of admission are used. This is based on the fact that they belong to special groups for which the application of the general procedure is unacceptable for a number of reasons. A probationary period is not established for the categories of persons indicated below:
- women during pregnancy,
- women with children under one and a half years old,
- minors (under 18 years old),
- employees who have entered into a contract for a period of less than two months,
- applicants who have received education (secondary specialized or higher education) in programs with state accreditation and who are getting a job in their specialty for the first time within a year after the end of their studies,
- candidates who have applied for an elected position (paid),
- employees who were transferred from another company by agreement of employers,
- applicants who were selected through a competition to fill a specific position.
The first part of Article 207 of the Code also contains information about the prohibition of a probationary period for persons who have successfully completed an apprenticeship and subsequently entered into an agreement with the employer from whom they were trained. A similar restriction also applies to citizens who perform alternative civil service (clause 41 of Resolution No. 256 of May 28, 2004). In a situation where an agreement is concluded with the listed persons, which contains information about their completion of the probationary period, it is automatically canceled (will have no force). The dismissal of these employees due to failure to pass tests within the period is considered illegal (Article 71 of the Code).
To restore justice, the listed persons can sue. In accordance with Article 394 of the Code, an employee may be offered the following options:
- monetary compensation (moral damage),
- reinstatement,
- monetary compensation for the period of forced downtime.
A few words about the design of tests
All relations between employers and employees are formalized by appropriate agreements. The probationary period is no exception. A special note is placed in the contract. If there is no mention of a probationary period, it is concluded that the employee was hired on a general basis (without passing tests). If for some reason the employee began to perform his duties without signing the relevant papers (the agreement was signed later), then it is considered that he has been accepted.
A probationary period can only be issued before the start of work. Salaries for the specified period are paid in full in accordance with the position held. According to Article 70 of the Code, an employee on probation has all the rights and obligations contained in labor law. In accordance with this, penalties and measures provided for in the organization for violation of internal rules may be applied to him.
When passing tests, not only the employer makes a decision regarding the employee. The latter can also analyze the situation within the company and decide on the need to continue working. If anything does not suit him, he can terminate the contract. Before this (three days in advance), the employee must notify the manager of his intention in writing.
Negative test results are a valid reason for terminating the contract. The manager notifies the employee in writing three days in advance. The reasons must be indicated in the decision. The employee has the right to appeal it in court. If the probationary period has ended, but the employee continues to perform job duties, this is automatically considered to have passed the test. In this case, termination of the contract can be carried out on a general basis.
Penalties for violation of labor regulations
The legislation strictly regulates the relationship between employees and employers. Any violations - intentional or accidental - are punishable by certain types of penalties. Article 5.27 of the Code of Administrative Offenses provides for (administrative) liability for non-compliance with established standards. An amount of from thirty to fifty thousand rubles is collected from legal entities. Officials and individual entrepreneurs will be required to pay from one to five thousand rubles.
Errors in drawing up an agreement or its absence lead to a fine equal to ten to twenty thousand rubles for officials. For legal entities it will be fifty to one hundred thousand rubles. If the violation was committed by a person who is engaged in entrepreneurial activity without forming a legal entity, then the amount is from five to ten thousand. Repeated commission of these violations is punishable by increased monetary penalties and suspension of activities for certain categories of employers (Article 5.27, paragraphs 4 and 5).
Employees are the most important element in building a reliable and profitable business. It does not matter what duties they perform - draw up documentation or are directly involved in the production of goods. The prosperity of the company and the quality of project implementation depend on the correct selection of personnel. Every employer strives to find a high-quality professional, but this is not always easy.
The probationary period allows you to solve a wide range of problems that arise (assessing the candidate’s personality, level of qualifications, etc.). When hiring an employee, it becomes possible to analyze his behavior and principles of work in the conditions of a particular company. If he successfully demonstrates his skills, he receives a vacant position. For many employers, this approach to employee selection is the only acceptable option, because no interview can guarantee a candidate’s 100% suitability for the position. Actual performance and actual results are the best proof of applicants' abilities.
Probation period: rules for establishing
A probationary period is a working period during which the employer and employee have the opportunity to finally take a closer look at each other and decide whether it is worth continuing cooperation. Moreover, although it seems that the final word here remains with the employer, the employee can also change his mind during the probationary period, so it is probably worth drawing the conclusion that establishing a probationary period is beneficial to both parties to the employment relationship.
Legal norms
The norms and nuances of the probationary period are stipulated in the articles of the Labor Code of the Russian Federation:
- 70 “Test for employment”;
- 71 “Result of the test when applying for a job.”
Some features of the test setup for state civil servants are specified in the Federal Laws of the Russian Federation.
Determination of probationary period
As mentioned above, a probationary period is a period during which the employer can determine whether the employee is suitable for him, and the employee can finally decide whether he is satisfied with such work and such a team. The probationary period is no different from the normal work process, except that both parties to the working relationship are closely scrutinizing each other, and during this period there is a simplified dismissal procedure in terms of working out. This is where all the differences with the normal labor process end - an employee undergoing a probationary period is subject to the same requirements and guarantees as all other employees of the enterprise, in accordance with their positions, labor law standards and internal documents of the enterprise.
Documentation of the probationary period
The probationary period is part of the labor process, therefore, the employment contract must include an entry stating that the employee was hired on a probationary period. If such a record was not made, it is considered that the employee was accepted without any tests, even if after a couple of days or a week the employer comes to his senses and decides to formalize the test. It is illegal to do this.
The probationary period must be established with the consent of the employee, and the employee must know its duration and the nuances of completion. Information about the duration of the probationary period is duplicated in the employment order - the dates of the probationary period in the employment contract and the employment order must match.
Information about completion of the probationary period is not entered into the work book, except in cases where the employee is dismissed as having failed the test. The end of the probationary period in other cases - when the employee successfully copes and is left on the staff of the enterprise - is not documented in any way, because the employment contract already states that the employee has been accepted, and the dates of the duration of the probationary period indicate its completion.
Probationary period regulations
In order for each employee to understand what his responsibilities are during the probationary period, and also to be sure that his rights are protected, it is possible to further develop and approve the Probationary Period Regulations.
The probation period must contain:
- general provisions - which stipulate the duration of the probationary period, its goals and objectives, and may refer to legal norms;
- the procedure for passing the test - which indicates the nuances of passing the probationary period at a given enterprise: work plan for the probationary period, assigning a supervisor to the employee, the procedure for submitting reports, the form of the conclusion on the test results, etc.;
- the result of passing the test - where they indicate the procedure for making a decision on the results of the probationary period.
An employee of the enterprise must be familiar with this Regulation.
Probation plan
Of course, it is more convenient to evaluate the results of an employee’s activities when there are certain criteria, for example, if the employer has established that a certain amount of products of a certain quality must be produced per work shift. For the employee, for his part, it is also more beneficial to have a clear plan during the probationary period, since if a decision is made that the employee did not cope with the test, having precise criteria in hand, it will be easier to appeal it in court.
Of course, the tasks for the probationary period included in the plan must be accurate, the criteria for their evaluation should not allow for ambiguous interpretation, if any additional tasks appear during the probationary period, they must be included in the plan.
p>The plan must be signed by the head of the enterprise and provided to the employee for review.
In general, it is in the interests of both the employee and the employer to record literally every step on paper and certify with signatures - this allows you to avoid unpleasant conversations with the labor commission and other regulatory authorities in the future.
Probation period report
At many enterprises, based on the results of the probationary period, the employee is required to write a report. As a rule, enterprises have a list of issues that the employee needs to disclose in his report, for example:
- what difficulties he encountered during the probationary period and how he solved them;
- what innovations he can bring to his work and to the work of the unit;
- what tasks the employee learned to cope with during the probationary period;
- what tasks the employee failed to cope with, why and how he plans to cope in the future.
The report is usually drawn up in any form in a business style on standard A4 sheets.
Conclusion on passing the probationary period
At the end of the probationary period, the employer, if described in the Probationary Period Regulations, writes a conclusion on the results. This could be a separate order, analytical note, commission act, etc. If a curator was provided to the employee during the probationary period, such a conclusion is drawn up by him. The enterprise may have a specially designed form for the report, or the conclusion may be drawn up in any form.
In the conclusion on completion of the probationary period, it is necessary to indicate, for example, such criteria and their assessment as:
- professional competence;
- obligation;
- diligence;
- ability to plan;
- workflow optimization;
- quality of work performed;
- compliance with labor discipline;
- employee achievements;
- ability to work in a team.
Based on this conclusion, we can conclude whether the given employee is suitable for the enterprise. The employee must be familiar with the conclusion against signature, especially if we are talking about the dismissal of the employee for not completing the probationary period.
Order to end the probationary period
In the case when the employee has successfully completed the probationary period, no additional documents are required - the employee simply continues to work as he worked before, and by default it is considered that he has completed it.
In the same case, when the employee did not cope with the test, he must be dismissed at the end of the probationary period. To do this, it is best to first draw up a conclusion about the results of the probationary period, familiarize the employee with it against signature, and if the employee refuses to sign, draw up a corresponding report about this in the presence of the appointed commission.
After which the company issues an order to dismiss the employee due to the fact that he has not completed the probationary period. The basis for the order is an employment contract, which states the condition of completing a probationary period, and a conclusion on the results of the test or an act of the commission.
What are the benefits of a probationary period?
Despite the fact that the probationary period is the same part of the work process as regular working days, and the employee is subject to all the rights and obligations provided for by the labor code and internal documents of the enterprise, during the probationary period there is one significant nuance that makes it attractive and for the employee and for the employer. We are talking about dismissal during the probationary period.
Under normal circumstances, dismissal at the initiative of the employer is almost impossible, especially if a permanent employment contract is signed. After all, first you will have to prove the employee’s dishonesty or wait for an opportunity to liquidate the enterprise - which, you see, is not worth such effort if we are talking about one working unit.
If an employee is undergoing a probationary period, and the employer sees that he cannot cope, the employee can be dismissed not only as having failed the test at the end of the probationary period, but also in the midst of the process at any time. To do this, the employer must only notify the employee of dismissal in writing, against signature, three days before the date of dismissal. It is best to prepare a conclusion on the unsuitability of the employee for this, since such dismissal can be appealed in court.
Dismissal at the end of the probationary period or in the middle of it is not agreed upon with the trade union committee and does not imply payment of severance pay, which, of course, is also very convenient for employers.
The employee, for his part, in the event of dismissal under normal circumstances, must work for at least two weeks, and work during the probationary period is only three days. Therefore, for some reason, it is also more profitable for an employee to get a job with a probationary period than without it, despite the fact that many are worried about how a record of such a short-term job will look in their work book or resume.
How long can the probationary period last?
According to the law, the average length of the probationary period is three months. At the request of the employer, the probationary period can be set for just a month or two months. But it’s better to take as much time as possible, since you can always complete the test ahead of schedule, but extending the probationary period is prohibited by law.
In some cases, the length of the probationary period varies.
1. For employees with whom an employment contract has been signed for a period of two to six months, the probationary period must be set at two weeks.
2. For civil government employees, the probationary period is set to last from six months to a year, in some cases - for the same three months.
3. For heads of enterprises, branches and various divisions, the probationary period can be set from three months to six months.
It must be taken into account that only those days when the employee was present at the workplace are counted in the probationary period. Therefore, for example, sick leave during the probationary period or military training does not count towards the general term. That is, an employee who has a probationary period from May 5th to June 5th, who was sick for four working days during this period, will have to work on the probationary period until June 9th. Extension of the probationary period due to the employee’s absence from the workplace is formalized by an order, to which the relevant documents confirming the employee’s absence are attached. And this is the only case when it is allowed to extend the probationary period.
Prohibition on setting a probationary period
Labor legislation provides for a certain category of citizens for whom a probationary period is not established. These include:
- pregnant women;
- minors;
- employees hired for transfer between enterprises or divisions;
- young specialists accepted into their specialty within a year after graduation;
- employees in elected positions;
- employees who won a competition for a position;
- temporary workers whose employment contract is signed for a period of no more than two months.
In some cases, pregnant women or employees hired by transfer may still be subject to a probationary period - we are talking about the civil public service.
Guarantees for employees during the probationary period
We must not forget that the law guarantees employees on a probationary period equal rights with other employees. This applies to all the nuances of the work process. For example, pay during the probationary period should be the same as for other employees in this position. If the employer pays the employee less during this period, he violates the norms of the Labor Code. It is strictly prohibited to describe in the Probationary Period Regulations or Employment Contract that during this period the employee will be paid less.
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