In many companies, it is customary to set probation for newbies. This helps to discern the level of professionalism in a beginner, as well as to predict how his relationship with the team will develop. If an employee performs his duties poorly, treats his work irresponsibly and violates the accepted routine, these are good reasons for early termination of cooperation. But is it possible to do this during the trial period and how the dismissal procedure takes place, read further in the article.
Is it possible to dismiss an employee on probation and for what reasons?
When, during the established test, an employee submits not the most joyful prospects for further cooperation, management may decide to dismiss him (although, if he is dissatisfied with something, the employee is more likely to initiate dismissal of his own free will during the trial period earlier). However, the reason for such a decision must be weighty.
According to the terms of the Labor Code of the Russian Federation, to reasons can be attributed:
- Complaints from customers served by this employee.
- Mistakes in their documents.
- Conflicts with colleagues.
- Failure to fulfill labor tasks and approved plans.
- Violation of the established labor order.
All facts confirming the discrepancy must be recorded in a specific journal. Based on a number of reasons, the employer decides to break labor relations with an employee who has not passed the probationary period.
By the way, material on how to dismiss a pensioner in 2018 without his desire, but according to the law, may come in handy.
How to dismiss an employee who has not passed the probationary period - the procedure for dismissal
The procedure for terminating an employment relationship with an employee who has not passed the probationary period goes through several stages.
Stage 1. Collection of documents proving improper performance of duties.
Such documents include:
- customer complaints;
- explanatory notes of the employee himself;
- disciplinary orders;
- acts internal audit, in which errors made by the employee are noted.
Stage 2. Delivery of a written notice. 3 days before the dismissal, the employer must prepare a written notice. In it, he must indicate the reasons for what is happening.
Stage 3. Issue of the order. 3 days after the notification is delivered to the employee, the employer must draw up a dismissal order and give it to the employee for signature.
Stage 4. Making an entry in work book. After the issuance of the order, an entry is made in the labor record about the termination of labor relations at the initiative of the employer in accordance with article 77 par 4 either by article 80 at the initiative of the worker. Then the labor is issued in the hands of a former employee. Together with her, the employer's side is obliged to issue the balance of wages on the same day. If the employee considers the decision unfair, he can sue in order to protect his interests. Is the solution illegal? The court will restore labor rights the injured party.
Voluntary dismissal on probation
But not always the initiative to terminate the employment contract comes from the employer. The initiator may also be the employee himself, who, during the allotted trial period, came to the conclusion that work in this organization for some reason does not suit him. These can be - schedule, conditions, amount of payment, do not like the team, etc. To quit, the employee during the test must write a statement and give it to the employer for signature or take it to the personnel department.
Do I have to work 2 weeks on probation upon dismissal?
You don't have to work two weeks on probation. The law allotted only three days for working off. However, if the employer does not consider it necessary to give working time, the dismissal occurs in one day. As practice shows, the parties break off relations when the management has already found a replacement, i.e., there is already another candidate for the position, which will soon become vacant.
Sample letter of resignation of one's own free will during the probationary period 2018
In turn, the company's management must prepare the relevant documents. The employee of the personnel department draws up a dismissal order. A completed sample of this document can be found
The order is signed by the director of the enterprise.
What is written in the labor?
The fear of many applicants, when appointing a probationary period, will not pass the test and be dismissed under the article. However almost always, those who fail the test are fired own will, which is written in the labor (based on article 80 of the Labor Code of the Russian Federation) . Of course, in the case when an employee was badly guilty and was noticed in theft, or turned out to be a malicious violator of the labor schedule, the employer has the right to dismiss him on his own initiative under one of the articles of the Labor Code of the Russian Federation.
The termination of the employment relationship may occur at the request of the employee. But it is also possible for the employer to take the initiative to terminate the contract.
For employees, a probationary period is provided for when hiring. The need to pass it is determined by the employer, and is also prescribed in the employment contract. This period is important for checking the suitability of the employee for the position held.
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If the employer considers that a person cannot continue to work due to certain circumstances, he can carry out a dismissal due to failure to complete the probationary period. There is a certain procedure for termination of employment relations in this case.
Essence of terms
The probationary period is part of the relationship between the employee and the employer. It is no different from normal work. A person fulfills his obligations in accordance with established rules on an equal basis with other employees. During this time, the employer checks the compliance of the employee with the position held. At the end of the test, the issue of hiring a person on a permanent basis is decided.
Establishing a probationary period is possible only for newly accepted workers. Sometimes local documentation provides for verification for individuals who move up the career ladder and start working in a higher position. It is also possible to test when moving to work on a different qualification.
Legislation
The probationary period is appointed at the moment when a person begins labor activity In the organisation. It is necessary to assess the professional qualities and skill level of an employee in the conditions of his position.
For the employee, this period is also important. He can appreciate:
- the quality of the employer;
- working conditions;
- relationships with colleagues.
In accordance with his opinion, during the audit, he will have to decide whether to continue working in this institution or not.
Based on Article 70 of the Labor Code of the Russian Federation, the duration of the probationary period is determined, which varies depending on the nature of the relationship and the position held:
- ordinary workers must have a probationary period of not more than three months;
- if the person is applying for a replacement leadership position and the fulfillment of the obligations of the chief accountant, then the audit lasts 6 months;
- when concluded for no more than six months, the test is carried out within 14 days.
The length of the probationary period may be extended. This is provided if a person is absent from the workplace during the check, for example, in the event of temporary disability.
There are two options for completing the test. With a satisfactory decision, the employee continues to work in the institution. It is possible to terminate the contract with him in case of agreement of the parties or on a personal initiative. If the result is unsatisfactory, the employee may be dismissed before the end of the audit.
In the event that a probationary period is passed by an employee who is applying for a higher position, dismissal due to failure to pass the probationary period cannot be made. The employee is simply not transferred to a new position, but remains to work in the previous place.
Legislation provides for restrictions for employers. He cannot extend the period of probation at his own request. Also, the employee cannot be re-screened.
Legislative benefits are provided for:
- employees with children under the age of 1 year and 6 months;
- persons under the age of 18;
- deputies of elected positions;
- employees who were hired by transfer;
- citizens who won the competition for the position.
In case of dismissal, working out for 14 days is not established. This rule applies regardless of who initiated the termination of the employment relationship.
A person can terminate the agreement at his own will. To carry out the procedure, he will need to notify the management three days before the intended departure.
Possible reasons
If a person does not pass the probationary period, the employer may terminate the employment relationship with him. It is allowed to do this until the end of the test.
A negative result of the check may be a statement of the fact that a person does not meet the requirements for filling this position. In this case, the employer may terminate the employment relationship with the employee, regardless of his desire.
Problematic moments during the inspection period can be associated not only with the incompetence of the employee. An unsatisfactory outcome is possible if the manager evaluates the person with a bias or has a negative personal attitude towards him. Therefore, consideration of controversial issues in the selection of employees is carried out not only in the course of assessing a person, but also when tracking his adaptation in the team.
IN Lately unaccepted employees do not want to leave of their own free will. Then the employer has no choice but to dismiss him under the article of the Labor Code of the Russian Federation.
Instructions for dismissal due to failure to pass the probationary period
Termination of employment relations is possible at the initiative of the employer at any time during the probationary period. The grounds for termination of the contract are reflected in article 81 of the Labor Code of the Russian Federation.
For dismissal, it is important to comply with certain formalities. There are several steps in the procedure according to the law.
First, you need to prepare documents that will reflect the grounds for the dismissal of a person. Further, a written notification is issued directly to the employee.
It reflects the reason for termination of the employment contract, which may be:
- execution of orders not on time or ignoring them;
- non-compliance with the rules adopted in the organization;
- disciplinary violations;
- poor quality work.
First of all, a probationary period is required to assess the suitability of a person for the position held. Even if a person comes to work at the wrong time, skips work time, then the notification should not mention this fact. The employee must be punished in the form of a reprimand or remark. The dismissal will be considered unlawful, and labor inspectors will inform the employer about it.
Next, an order is being prepared for the dismissal of a person. The legislation provides for two forms of the document. If employment contract terminated with one person, form T-8 is used. When dismissing several employees, form T-8 a must be applied.
After drawing up, the document must be handed over to the employee for review. He confirms the fact of reading with a signature. An appropriate entry is made in the work book of the employee.
Required Documentation
Registration of dismissal of an employee must be carried out on the basis of certain documents. There are several papers that may indicate the professional incompetence of a person.
These include:
- acts of improper performance of obligations in accordance with the position held;
- memorandums of the head of the structural unit;
- feedback from other employees;
- characteristics and conclusions of management;
- acts on the production of goods with defects;
- journals that reflect the passage of the test by the person;
- personal memos of a person with a report on completed / non-fulfilled assignments;
- minutes of the meeting of the commission following the results of the probationary period;
- records of clients in the book of complaints and suggestions.
Notifying an employee of a failure
Each employee after dismissal can appeal the decision in court. Therefore, the employer must protect himself by properly filing the dismissal. One of the main stages is the preparation of a notice of.
It is important to remember the basic rules of notification:
- The employee must be notified in writing.
- The notice must be sent no later than three days before the dismissal.
- The document must reflect the reason for terminating the contract. It should be noted that the person received an unsatisfactory assessment of the results of the test.
In accordance with part 3 of article 14 and part 1 of article 71 of the Labor Code of the Russian Federation, non-working days are included in the period for a warning.
It is impossible to dismiss an employee who is temporarily unable to work or is on vacation. The rules governing this rule are spelled out in part 1 of article 71 and part 6 of article 81 of the Labor Code of the Russian Federation. In this case, the probationary period is extended by as many days as the employee was absent.
The decision to terminate can be made by the employee. In this case, he must notify the employer in writing three days in advance.
Order to terminate the employment contract
Termination order labor agreement is drawn up in the T-8 form, which is unified and introduced by law in accordance with part 1 of article 84.1 of the Decree of the State Statistics Committee of the Russian Federation No. 1 of January 5, 2004.
Separate lines of the document are filled out based on certain requirements:
- The date of compilation is considered to be no later than the last day of the test. If you do not prepare an order on time, after the end of the probationary period, even with timely notification of the employee, the dismissal will be considered unlawful.
- When indicating the grounds for dismissal, you need to focus on the wording reflected in Part 1 of Article 71 of the Labor Code of the Russian Federation.
- The line “Reason (document, number and date)” indicates an extract from the employment contract on the establishment of a probationary period, the number and date of the notification indicating the reason for termination, the date and number of other documents that confirm the fact that the employee does not comply with the position held. These measures are necessary to recognize the validity of the order.
After drawing up the document, it is transferred to the employee for reading. He must confirm the fact of familiarization with his signature. If he refuses to do this, an appropriate inscription is placed on the order.
Settlements and payout
The salary for the time that a person has worked cannot be lower than that reflected in the replacement specific position. If its size is reduced, this can be regarded as a violation of the law.
compensate unused vacation the employer does not always have to. The payment is provided for employees who have worked more than 15 days.
For the calculation, the number of months worked is determined, rounding the terms of more than 15 days to the nearest integer. Periods less than 15 days are not taken into account. You can determine the number of vacation days by multiplying the number of months by 2.33 (so many days are allotted for each month worked).
To compensate, you need to know the average earnings of an employee per day. To do this, the salary for the billing period is divided by the number of days in the month according to the average value - 29.3.
The previous calculation is carried out with a fully worked month. In other situations, you need to focus on the formula Dav.month = 29.3 / Dmes * Dotr., In which Dmes is the number of days in this month, and Dotr is the days worked.
Thus, the amount of compensation is determined by multiplying the number of vacation days due to the employee by the average daily wages. Payment must be made no later than the date following the day the employee claims.
How can an employee protect their rights?
Legislation provides for guarantees of the rights of an employee undergoing a probationary period. Indeed, during this period, citizens are especially vulnerable.
Employers can abuse their position. Often, after working for a certain period, the employee is fired without payment of wages in order to save money.
In order for a person to be able to protect his rights, certain norms are prescribed by law.
Among them are:
- reflection of the order of passing tests;
- selection of categories of employees for whom a probationary period is not established;
- setting a maximum probationary period;
- the impossibility of changing the test conditions only at the initiative of the employer without the consent of the employee;
- determination for the subject of rights similar to other employees;
- sending a written notice three days before the dismissal stating the reason;
- familiarization of the person with the documentation against signature;
- the ability to voluntarily stop the test and quit.
Hiring a new employee to the state is always a lottery. You can both pull out a winning ticket and get a highly qualified specialist, or stumble upon, to put it mildly, bad man. But after all, at first glance it is difficult to understand who exactly you have come across, and resumes and recommendations can lie. In order to test a newcomer, many employers use such a thing as a trial period. Throughout his entire period, the newcomer gets acquainted with his duties, learns and tries to join the team.
But what if new employee unable to cope even with light work and even with the help of a mentor? Do not keep on the staff an incompetent, inept or simply lazy employee who is not able to fulfill even the most simple tasks. In this article, we will tell you about how to properly and in accordance with the Labor Code of the Russian Federation dismiss an employee who has failed the probationary period.
In the legislation of the Russian Federation, and in particular in the Labor Code of the Russian Federation, there is no such thing as a probationary period. The term "test" is used instead. However, these concepts are so similar that the phrase "trial period" has almost completely replaced the wording given in the Labor Code of the Russian Federation in colloquial speech and even in some documents.
A test is an addition to an employment contract that describes the first time an employee works on a job. new position. This add-on is unique in its own way - you can specify almost anything in it: from what duties the employee will perform to how much he will receive for his actions. That is why the test most often involves training and working with a mentor.
In addition, in the terms of the test contract, additional clauses are often prescribed, upon fulfillment of which the employee will be fired. Most often, this is the failure of some kind of test, non-fulfillment of the work plan, refusal to perform some actions and other violations that are characteristic of the standard dismissal procedure.
When is it impossible to dismiss an employee who has not passed the probationary period?
There are only two cases when the dismissal of an employee who has not passed the probationary period is unacceptable. The first is that the employee could not cope with the conditions of the test due to circumstances beyond his control. In this case, he is obliged to provide a document confirming the reason that prevented him. Then the employer can either cancel the probationary period or change its conditions.
The second case is more interesting. An employee cannot be fired if they are subject to general restrictions on dismissal. So, for example, it will not be possible to dismiss:
- An employee who has a disabled person in care;
- Mother with a child under three years old;
- Mother - alone or father - alone with a child under 14;
- The sole breadwinner of a large family;
- Pregnant woman.
Such citizens, as a rule, are subject to more lenient conditions of the probationary period. If they cannot fulfill them, then they will have to be fired after full employment in accordance with the general rules.
How to fire an employee?
This question is faced by every employer who does not like a new employee for one reason or another. This question in itself is quite simple, but many managers create a lot of problems for themselves, trying to find a reason to fire an employee. It should be remembered that when employer can use specified in the Labor Code of the Russian Federation, and special conditions mentioned in the test contract.
The whole procedure can be carried out in three stages:
- Preparation of documents and grounds for dismissal;
- Carrying out the dismissal procedure;
- Settlement of labor disputes.
Remember that even if an employee passes the test unsatisfactorily, you cannot just throw him out on the street - the procedure for terminating the contract must take place in accordance with the law, otherwise, you as an employer may be sued for violating the Labor Code of the Russian Federation.
Preparation of documents
For the dismissal of a new employee, according to the law, some grounds will be required. And they will need to be not only found, but also documented. You can confirm the incompetence of an employee or his unsuitability for work with the following papers:
- Acts of failure to perform work;
- Acts on the release of defective products by an employee;
- Documents and memos from the curator;
- Extracts from the test control log;
- Documents fixing violations labor standards or safety precautions;
- Memos with complaints about absenteeism from the curator;
- Characteristics given by other employees;
- Complaints from the team.
- Explanatory statements from the employee, not supported by documents relieving him of responsibility.
In addition to all these papers, you can also attach any papers fixing disciplinary sanctions or reprimands. It does not matter the form in which the penalty is expressed: act, note or other document.
Dismissal of an employee who has not passed the probationary period
The dismissal procedure itself must be fully carried out in accordance with the standards established by the Labor Code of the Russian Federation. Any violation of them may lead to the fact that complex relations may arise between you and the employee. So, the dismissal takes place in 4 stages:
- Sending a termination notice to an employee. It must be provided to the employee. not later than three days before the end of the trial period;
- Order preparation. An order of a standard sample is written, in which in a clear and accessible form the reason for the termination of the employment contract is indicated;
- The employee receives an order and his documents. Namely, all the papers that he provided at the time of the device and did not receive back, including the work book with a note of dismissal;
- The worker receives all the money due to him for his work. In this case, it will be necessary to indicate exactly how, for what and why he received certain amounts. The receipt will need to indicate the main salary, bonuses, fines, etc.
In other words, the procedure can not be complicated. There is always the opportunity to communicate with the employee and agree on what. This will facilitate the dismissal process for the employer, and the employee will get rid of the unpleasant notice of dismissal in the work book.
Resolution of labor disputes
This part is far from obligatory, but still labor disputes can arise quite often and not without reason. First of all, an employee fired for failing a test can. If there are any reasonable requirements in it, then it is better to fulfill them as soon as possible. If the claims are erroneous, then it is worth filing an official response explaining why the complaint has no legal force.
Also, a dismissed employee has every right to apply to the labor inspectorate. And such an appeal will cause a dismissal check. If it passed according to the law, then the employer will be able to work calmly. If there was an illegal or erroneous dismissal, then the employer will have to, the size of which will be based on the average daily salary of the dismissed person, as well as to reinstate the employee in the position.
Alternative to dismissal
In fact, there is only one alternative that will avoid the dismissal of an employee - However, this procedure is very complicated, and in order to carry it out legally, many conditions will need to be met.
Extension is possible both by force and by agreement. It is possible to increase the probationary period without the consent of the employee only if he did not fulfill his duties or did not cope with the conditions of the test for a good reason (for example, was absent due to illness).
Voluntary renewal is a completely different matter. It is possible only under certain conditions:
- Both the employer and the employee agree to an increase in the duration of the test;
- The extension will not in any way violate the rights of the employee and will not put him in worse conditions;
- The maximum test periods set by .
Prolongation of the probationary period will be a good alternative to dismissal, but only if the employee showed himself on the good side, but could not cope with the task, or simply did not have time to do it. In this case, the extension will not only allow him to finish learning the necessary skills, but also better understand the essence of his own duties and principles of work. At the same time, the employer will not spend either time or money on finding and training a new person.
To determine the abilities and skills of a new employee, he is issued for a trial period. During this time, he must show his professionalism and general qualities, as well as work well with the team. If the employee is suitable, then he is transferred to the state. If he violates the regime, does not cope with work or does not fit into the team, then he has toIn this article, we will look at how to do this correctly so as not to violate the law and not receive sanctions from the inspection authorities because of an offended employee.
Introduction
In order for an employee who was fired during or at the end of the probationary period not to sue you or the labor inspectorate, you need to comply with the law and carefully consider the contract that you enter into with him. Your task: to justify that it was the employee who was to blame for the fact that he was fired because he did not cope with job instructions or violated the regime. At the same time, most Russian employers treat the probationary period through their fingers, hiring employees even without registration and dismissing them for no particular reason. Doing so is unacceptable as it is a violation labor law Russia.
A probationary employee has all the rights and obligations
The admission process must proceed according to the TC. So, after the selection of a candidate, a temporary employment contract is signed with him, after which a decision is made to transfer to a permanent one. The contract must clearly indicate the conditions for passing the IP, as well as introduce the rules of the current internal regulations into it.
Attention:if you plan to hire employees not only at the key enterprise, but also at its structural divisions, then it is possible to issue a local regulatory act, which spells out the detailed procedure for passing the probationary period.
This act can work not on one, but on several organizations connected with each other. At the same time, he must fully comply with the requirements of the Labor Code of the Russian Federation. As an additional measure, you can draw up an individual plan for new employees for a certain period. Appropriate notes about its effectiveness are made in the plan. That is, items are included in the plan according to job description, and if the employee fulfills them, then the responsible person puts down the appropriate notes. The employee is familiarized with the instructions and job responsibilities against signature.
What documents are needed
Before painting,let's look at what documents need to be issued for its adoption on workplace. You should be aware that it is impossible to prescribe a probationary period exclusively in the order to enroll an employee, since under such conditions he is considered hired without IP and he cannot be fired for lack of competence or poor results. In general, when enrolling a new employee, you need to draw up the following documents for him:
- Internal order to enroll a new employee.
- Employment contract, which must specify the terms of the test.
- Various regulations that regulate the workflow of an employee.
- Data on the labor schedule in force at the enterprise.
- Job description of the employee.
Separately, you can offer an individual plan, but this is done at the request of the head of the company. If there are no listed documents, then they must be developed with the involvement of specialists from the personnel department and a lawyer. Spend enough time on this and check that the content complies with the TC standards so that they cannot later be challenged or recognized as invalid. When applying for a job, an employee without fail gets acquainted with the papers against signature and only after that starts work.
There must be a good reason for dismissal
Who should not be accepted on probation
If you want to fire without problems negligent employee who does not cope with his duties, then you need to study the labor code in detail and understand some of its paragraphs. You should be aware that there is a category of persons who cannot be registered for a probationary period. These include:
- Persons who are underage.
- Employees who came to work in the company after receiving a vocational education.
- Young employees after secondary special, postgraduate or university education.
- Seasonal employees, temporary employees.
- Disabled 1-3 groups.
- Pregnant women, as well as those who have a newborn under the age of 1.5 years.
- Employees who are employed on a competitive basis for the positions of deputies.
- Employees who are transferred from one department to another or from one office to another.
It is unacceptable to accept these categories of persons on the IP, otherwise it will be considered a violation with all the ensuing consequences. They can either complain to the labor inspectorate, or simply demand to be enrolled in the state on the basis of an order.
How long is the trial period
According to Article 17 of the Labor Code of the Russian Federation, the employer has the right to introduce a probationary period into any employment contracts, regardless of their validity period. The only exceptions are the situations described above.
Attention:the employer has the right to introduce a probationary period rule into fixed-term TDs, contracts or untimely employment contracts. Moreover, the introduction of IP for part-time workers is allowed.
At the same time, it must be understood that if part-time employment occurs within one organization, then IP cannot be introduced, as well as provided that the employee is transferred within the organization while maintaining job descriptions and labor functions. Labor Code does not provide for a minimum probationary period, that is, it can be at least one day. But the maximum cannot be more than 3 months. In some cases, it can be extended up to 4 months if a responsible employee (top manager, general director, etc.) is hired. Moreover, if the validity period of the TD is only a few weeks or months, then the probationary period is also unacceptable. For example, if an employee is hired for 2 months, then it is impossible to install an IP for him, so he is simply issued as a temporary one. If an employee has worked at least one day longer than the probationary period, then it is impossible to dismiss him for the reason that he did not pass the probationary period (dismissal for other reasons, it is carried out in accordance with the norms of the Labor Code).
Comply with the law when hiring
How to count correctly
Let's analyze a few important nuances regarding the rules for calculating IP. If you accepted an employee on the IS, and during this period he fell ill, then the sick leave is not taken into account when calculating the days of the verification period.
Example:the employee was hired under IS for a period of 14 days (two calendar weeks). The enrollment took place on Monday, September 1st. The employee worked for a week, and from Monday, September 7, he went on sick leave for 4 days. On Thursday, September 10, he left the hospital, that is, he needs to work another week before the end of the IS.
If the employee was absent from the workplace for some other reason, then these days are also taken into account when calculating. But remember that it is unacceptable to make IP for longer than 3 calendar months. No excuses can extend it (we wrote about exceptions above), otherwise it will be a serious violation of the law. Even if you receive written consent from an employee for an extension, it will not be legally binding. It is also impossible to extend by transferring the employee from place to place. For example, you took him to a warehouse with an IP for a month, and a few days before the end of the period, you transferred him to the position of a loader operator with a new IP. This is an illegal decision - in this case, the IP ends exactly one month after the employee is accepted to the first position.
Attention:IP is entered into the employment contract and is established only once. No subsequent changes or extensions within the same organization are allowed. Information about IP is not entered into the work book - if an employee has successfully passed it, then he is considered to be working from the day of enrollment.
Data on the trial period is entered exclusively in the order. If you are hiring in this way, be sure to check this box with clear deadlines and make it known to employees. According to the requirements of the Labor Code, an entry in the work book must be made within five calendar days after admission. If an employee is fired before the end of the trial period, then two entries are made: one about admission, the second about the fact that he is leaving for one reason or another. Since IP is additional condition for an employment contract, then it is considered valid even if there is no such clause in the document.
How to carry out a layoff
Let's consider a step-by-step instruction for dismissal of a person who has not passed the probationary period employee. It is necessary to act according to this algorithm, otherwise the court may take the side of the employee who will file a complaint against you.
- Prepare your documents carefully, avoiding errors and inaccuracies in them. If you do not have experience in drafting such papers, contact a lawyer.
- If a dismissal is made, then be sure to tell the employee why he is not suitable. Make it documented and justified.
- Three calendar days be sure to notify the employee about the upcoming event before dismissal. This must be done in writing.
- The notice should include the reason why the employee was not suitable for your enterprise. Indicate specific reasons, not vague statements, make links to supporting documents.
Draw up a contract under the supervision of a lawyer
What reasons can be justified for dismissal? The key ones are:
- Written complaints from colleagues or clients about an employee's performance (verbal complaints cannot be substantiated and therefore do not count).
- Various types of memos stating that the employee does not perform job duties or does not cope with the tasks assigned to him (only if these duties correspond to official duties). That is, you cannot fire a storekeeper for not developing marketing strategy or did not protect the server from a hacker attack.
- Documents confirming violations of time standards, working hours, production standards and other local requirements.
Further, the notice with the reason indicated in it is handed to the employee in the presence of two witnesses. If the employee accepts it, he puts his signature on the act. If he refuses, then two witnesses sign the act and indicate that the employee was familiar with the notice, but refused to accept it or sign the necessary papers. After the end of the period, the employee is fired and the necessary documents are issued to him.
Reasons for dismissal and employee rights
Above, we described several reasons for dismissal, but keep in mind that it is impossible to expel an employee because he did not get along with the watchman or the chief accountant. There must be a strong justification for this. In addition to Article 29 of the Labor Code, an employee may be fired for other reasons: violation labor discipline, appearance at the workplace in the stage of drug / alcohol intoxication, etc. If the employee normally passes the IS, then, according to article 71, he becomes a full-fledged employee of the enterprise. But this does not mean that during the trial period his rights should be limited. He can:
- Receive salary according to the current schedule (advance payment and salary).
- Receive bonuses for successfully completed work, receive disciplinary action for violations of the rules.
In contact with
What will help to prove low qualification employee
How to give notice of dismissal so that you have evidence
When a probationary period is set for a new employee when hiring, employers usually consider it as an additional reason for dismissal, an unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation). However, such a safety net in case the employee does not fit the professional qualities or does not work well with the team is rather conditional. The fact is that for dismissal on this basis, weighty evidence is needed that the employee did not cope with the test. And for this, at least the task itself for a trial period and a reasoned conclusion about the results of its implementation are needed. Otherwise, claims former employees about reinstatement will be satisfied, which in turn can result in impressive costs for the company. To learn how to properly prepare documents for testing and have convincing evidence in court, read this article.
An individual work plan for the duration of the test is a weighty argument in court
Despite the rather detailed regulation of the probationary period in the Labor Code, it is better to turn Special attention at the first stage of the relationship between the employer and the new employee, the execution of the test conditions. There are subtleties here, without taking into account which the court and the labor inspectorate can decide that there was no probationary period at all.
The condition of the probationary period must be spelled out in the employment contract and duplicated in the order for employment (part 1 of article 68 of the Labor Code of the Russian Federation). Sometimes employers, fearing that an employee may not be suitable for the company, do not conclude an employment contract with him until the end of the probationary period. Instead, the manager issues a hiring order stating that the employee was hired on probation. Employers consider such a scheme convenient on the one hand, the employee is given the illusion that an employment relationship has begun, and on the other hand, the company saves itself from formalizing the employee. If subsequently the employee did not fit the company, the manager dismisses him as having failed the test, referring to the order. However, such a scheme is against the law and the labor inspectorate can fine the company during the inspection.
The fact is that the order for employment must fully comply with the terms of the employment contract (Article 68 of the Labor Code of the Russian Federation), it indicates the number of the contract (form No. T-1, approved by resolution of the State Statistics Committee of Russia dated 05.01.04 No. 1). Accordingly, such an order is issued by the head only when the employment contract has already been concluded, otherwise the company faces a fine of 30 to 50 thousand rubles (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). But most importantly, this design option will not confirm that the employee has been set a probationary period, he will be considered actually admitted to work without a test.
Another document that an employer can draw up before an employee starts work is an individual plan for the duration of the probationary period. This document prescribes the main duties of the employee, the stages of work, tasks and deadlines for their implementation, and also appoints a so-called mentor who will evaluate the work performed. The employee will need to be familiarized with the individual plan against signature.
Each mistake of an employee is better documented.
An unsatisfactory test result of an employee must be documented. Documents that record the results of the employee's work (including intermediate ones) can serve as confirmation.
If the employer drew up an individual work plan for the employee, then the results are noted by the mentor directly in this document with an assessment of the result and comments. If an individual plan has not been drawn up, then you can give the employee written control tasks with deadlines for their implementation, and then evaluate and record the results.
But in any case, it is better to record and document the employee’s mistakes: such documents can be reports, memos from the immediate supervisor about the employee’s violation of the job description or labor contract, orders to impose penalties, comments in writing, acts on the production of defective products, poor performance of work. It is advisable to acquaint the employee with such documents against signature, and after each miss, demand explanatory note.
It is also possible that from the beginning of the employee’s work, no acts, reports or other documents were drawn up, and orders were issued orally. In this case, a special commission will have to be created to determine the final results of the test. The commission's decision is documented in a protocol.
Correctly executed notice is the main argument in court
If it is clear from the results of the test that the employee is not suitable for the proposed job, then he must be informed of the upcoming dismissal. This can be done at any time after the decision is made by the head (commission), however, the Labor Code obliges to notify the employee of the dismissal no later than three working days before the expiration of the test period (part 1 of article 71 of the Labor Code of the Russian Federation). If the specified period is violated, then such a basis for dismissal as failure to pass the probationary period will not be relevant and the employee can only be dismissed on general grounds. In practice, the employee is informed of the upcoming dismissal in writing by a notice.
As practice shows, the formulation of the reason for dismissal in the form of a general indication of the unsatisfactory completion of the probationary period is not enough. So, in one of the cases, an employee was fired on the basis that she did not pass her probationary period. The employer described the reason for the inconsistency with the position held in general terms (lack of due independence in decision-making, insufficient initiative, etc.). When considering the case, it turned out that in fact she performed work that was different from her duties under the job description, all orders were given orally, the result of the work was not recorded in any way. The court ruled that the dismissal was unlawful. The company was charged with the salary of an employee during her forced absence (decision of the Savelovsky District Court of Moscow dated 04.03.09 in case No. 2-967/2009).
Therefore, the notice must list exactly what reasons served as the basis for dismissal. For example, untimely or poor-quality performance of work, facts of violation of internal labor regulations, commission of a disciplinary offense, violation of job description. Such reasons must be indicated with reference to those documents that were drawn up based on the results of the employee's work.
Giving an employee a notice of resignation. In practice, the employee, as a rule, is personally notified of the dismissal. On the notice, the employee must write: Notice of dismissal following the results of the probationary period was handed in, put his signature and date. The original notice remains with the employer, while the employee is given a copy of it.
The employee may also refuse to sign the notice, citing the fact that he does not agree with the reason for dismissal. Then the employer is recommended to do the following: draw up an appropriate act of refusal to sign in the presence of several employees of the company. Witnesses will confirm with their signatures in this act the fact that the notice was delivered to the employee, as well as the refusal to certify it in writing. A copy of the notice may be sent to the employee's home address. However, it is better not to by registered mail with acknowledgment of receipt, and hand it over in person. This method is more reliable, because if there are problems with the mail, it will be difficult to prove that the employee actually received the notification. At the same time, it is important to comply with the deadlines established by Article 71 of the Labor Code, a letter with a notice of dismissal must be submitted to the postal authority (or courier) at least three days before the expiration of the probation period set for the employee.
Can all new hires be put on probation?
No, not everyone. According to the Labor Code, the employer does not have the right to establish a probationary period for certain categories of workers (for example, for pregnant women) when hiring (Article 70 of the Labor Code of the Russian Federation).
Advice on the subject
It is better not to replace the trial period with a fixed-term employment contract.
The Labor Code allows you to conclude a fixed-term employment contract only in certain cases (Articles 58, 59 of the Labor Code of the Russian Federation). It is prohibited to conclude fixed-term employment contracts in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period (Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2). Therefore, there is a risk that the employee will apply to the labor inspectorate and such an agreement will be recognized as concluded for an indefinite period (part 5 of article 58 of the Labor Code of the Russian Federation).
Colleague experience
We have a condition on a probationary period included in the employment contract, as well as in the order for employment, which the employee gets acquainted with against signature. We believe that drawing up an individual work plan is inappropriate, since the employee must take part in the general labor process. Most orders are made orally, but if a document is signed for execution by an employee, then, naturally, the deadline for its execution is set on the document and the quality of the work performed is controlled by the head of the department in which the employee was admitted. In the event of an error, the immediate supervisor of the employee prepares a memorandum addressed to the management, and written explanations are taken from the employee. The same explanations are taken when complaints are received from customers and contractors.
Often, management misunderstands the fact that during the probationary period, professional quality employee, not his personal. Therefore, it is impossible to dismiss an employee for creating an unfavorable moral climate in the team, even if you really want to.
Source - magazine Lawyer of the company
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