Withstood the test. The employee has not passed the probationary period: how to fire? Dismissal based on the results of the audit

Article 70

When concluding an employment contract, it may, by agreement of the parties, provide for a condition on testing the employee in order to verify his compliance with the assigned work.

Absence in employment contract probation conditions means that the employee is hired without probation.

A test for employment is not established for:

Persons elected by competition to fill the relevant position of pregnant women and women with children under the age of one and a half years;

Persons under the age of eighteen;

Persons who graduated with state accreditation educational institutions middle and higher vocational education and for the first time coming to work in the received specialty within one year from the date of graduation from an educational institution;

Persons elected to elective office for paid employment.

The trial 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 federal law.

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.

Article 71

In case of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. The employee has the right to appeal against the decision of the employer in court.

If the test result is unsatisfactory, the termination of the employment contract is made without taking into account the opinion of the relevant trade union body and without paying severance pay.

If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation, and the subsequent termination of the employment contract is allowed only on general grounds.

If, during the trial period, the employee comes to the conclusion that the job offered to him is not suitable for him, he has the right to terminate the employment contract by own will by notifying the employer in writing three days in advance.

1. Name each of the above articles of the Labor Code of the Russian Federation.

Answer:

Article 70

Article 71

2. How are employee rights protected during testing? (Using the text, name any two measures and briefly explain how each protects the worker.)

Answer:

The legislator lists the circle of persons who cannot be placed on a test when hiring (a test when hiring is not established for: persons elected by competition for the corresponding position of pregnant women and women with children under the age of one and a half years; persons who do not who have reached the age of eighteen years; persons who have graduated from state-accredited educational institutions of secondary and higher vocational education and for the first time come to work in their specialty within one year from the date of graduation from an educational institution; persons elected to an elective position for paid work);

The specific test period is set by the parties to the employment contract when hiring. However, this period may not exceed three months, and for heads of organizations and their deputies, heads of branches, representative offices and other separate structural subdivisions of organizations - six months, unless otherwise established by federal law. For civil servants probation three to six months. Consequently, the deadlines provided for by law cannot be increased or extended even by agreement of the parties.

By general rules the test condition is agreed upon by the parties when concluding an employment contract in the event that the employer considers it necessary to check the employee's ability to perform the labor function stipulated by the contract. If the employer does not see such a need, the test is not established for the employee. When setting a probationary period for an employee, the employer must take into account that the condition of the probation cannot subsequently be changed. For example, when concluding an employment contract, it is impossible to establish a trial period of one month, and then, after its expiration, extend this period for another month.

2. Using social science knowledge, explain why a probationary period can be beneficial for an employee who passes it (give two explanations).

Answer:

During the probation period, the worker may realize that the job offered to him is not suitable for him.

During the probation period, the employee may realize that he does not meet the qualification requirements that apply to this position. (dissatisfaction with the team, the level of professionalism of the boss, the incentive policy or low wages with high requirements for labor productivity)

3. Using the text, name any three categories of workers for whom a test for employment cannot be established. In each case, briefly explain why the law does not allow the test.

Answer:

A test for employment is not established for:

Persons applying for a job through a competition for the relevant position held in the manner prescribed by law (has already proven his professionalism);

Pregnant women (maternity care);

Persons under the age of eighteen years (protection of the rights of minors);

Persons who have graduated from educational institutions of primary, secondary and higher vocational education and for the first time come to work in their specialty;

Persons elected (chosen) to an elective position for paid work;

Persons invited to work in the order of transfer from another employer as agreed between employers

4 . What is the purpose of employee testing? What is the statutory probationary period? Explain why the terms of testing of ordinary employees and heads of organizations differ.

Answer:

The purpose of the probationary period is to check the compliance of the specialist with the activity assigned to him directly in the working environment.

The probation 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.

More responsible work for the leaders of organizations.

5. Irina Petrovna was hired with a trial period of one month. A few days after starting work, she fell ill and was absent for three weeks. After returning to work, she was outraged to learn that despite the end of the month from the date of employment, the trial period would continue for another three weeks. Is Irina Petrovna's indignation justified? Back up your opinion with the law.

Answer:

Irina Petrovna's indignation is not justified.

In Art. 70 of the Labor Code of the Russian Federation says: “The period of temporary disability of the employee and other periods when he was actually absent from work are not counted in the trial period.”

Quite often, when hiring, employers use a probationary period as a test of a person. Even with the seeming ideality of the employee, you still need to evaluate his ability for future work. It is for this that the possibility of appointing an employee on a probationary period is provided. This right granted to them has many nuances in application, which are worth considering in more detail.

What is a "trial period"? Why is it installed?

probationary period a certain time period is called during which the employer must decide whether a person is suitable for this activity or not. Its regulation is contained in Art. 70 - 71 of the Labor Code of the Russian Federation.

The selection of a new employee is not only a long, but also a painstaking process. Often, it consists of several stages, which may include interviews and special tests. But even such a careful selection does not exclude the possibility of hiring an incompetent worker. To avoid this oversight, the employer is given the right to appoint a test in relation to a potential employee. During this period, it is possible to identify the compliance of the applicant for the position with the existing requirements, evaluate his work, determine the level of qualification and attitude to the activities performed. If he is not competent enough or negligently performs his duties, such an “employee” can be abandoned.

But in order to avoid adverse consequences for themselves, the employer must be able to competently draw up and execute the very passage of the probationary period.

Essential when hiring or firing an employee.

About paying for maternity leave: when they go on vacation, for how long the amount of benefits is paid.

Who can be placed on probation?

In the Labor Code of the Russian Federation, two articles are devoted to the probationary period: 70 and 71. They indicate that the test is an optional condition. The employer cannot impose it on the applicant. That is, if the job seeker refuses to pass the term, he is either offered to start his activity without a probationary period, or they simply say goodbye to him. In practice, the second option is most often encountered.

Art. 70 of the Labor Code of the Russian Federation establishes a list of those citizens for whom a probationary period is not established:

Persons who are elected by competition (should be held in the manner established by the Labor Code of the Russian Federation and other acts) to fill the relevant position;
Women during pregnancy, as well as those women who have children whose age is up to 1.5 years;
Citizens under the age of 18;
Citizens who have either a secondary vocational or higher education on topics educational programs that are state accredited. Such citizens must be employed for the first time in their profession within a year from the day they received the appropriate education;
Citizens who are elected to an elective position to perform paid activities;
Citizens who were invited to work by transfer from another employer upon agreement between employers;
Citizens whose employment contract has a period of two months;
Other citizens, if it is provided for by the Labor Code of the Russian Federation, other federal laws or a collective agreement.

Remember that the test can only be established upon hiring. This means that if an already working employee is assigned to a vacancy (in the case of promotion, transfer, etc.), the test is not assigned.

Accordingly, all other categories of citizens can be accepted for a trial period.

Establishing a probationary period: what needs to be done?

So, if the applicant is a person in respect of whom a probationary period can be established, then this condition is included in the employment contract with him. Most employers are limited to this point only. But in the case of such registration, the probationary period will be useless, since it will be almost impossible to dismiss an employee as someone who has not passed the test. But for an employee, such registration for a job for a trial period will also be beneficial in that he can use this record if, for example, he finds a more profitable job and wishes to quit as soon as possible. After all, his working out on a trial period will not be two weeks, but some three days (see article 71 of the Labor Code of the Russian Federation).

Remember: The probationary period is not formalized only by an entry in the employment contract.

What documents do the employer need to issue?

The condition about the test itself and its duration must be indicated in the order for employment.

REMEMBER: For most job applicants, the maximum probation period is three months. The employer also has the right to set a period less than this. But if a test for a period of two months is fixed in the employment contract and the order itself, then it will not be possible to extend it to three months without the consent of the employee himself. This is due to the fact that the test condition refers to the essential terms of the employment contract, which can only be changed as a result of an agreement between the parties.

The next stage of the appointment of the test is the preparation of tasks for the period of the probationary period, as well as the development of those conditions that will allow the applicant to be considered as having passed the test. Such documents must either be announced or handed over to the employee. This must be done under signature. It must be remembered that tasks and conditions cannot allow ambiguity and subjectivity. They need to be formulated accurately and clearly.

During the entire period of probation, the employer must strictly monitor the performance of these tasks by the employee. If they are performed poorly or out of time, then these facts should be recorded (for example, in reports or memos). It is worth clearly indicating what task was given, and what exactly was not done, etc. It will not be superfluous to attach the task itself.

In the event that the employee was given any additional tasks, this must also be indicated in writing. It is better to give the task under the signature that the task has been received and is clear.

The correct design of the test is quite complicated and has many nuances. Each action must be recorded in writing. This will allow in the future to have evidence that the employee did not pass the test, which means that he can be fired.

Duration and extension of probation

As mentioned earlier, the trial period cannot be more than three months. But if we talk about the head of the organization or his deputy, as well as the chief accountant and his deputy, the head of the branch and other separate structural unit organizations, the trial cannot last more than six months (unless otherwise specified by federal law).

It should be noted that if an employment contract for a trial period is drawn up for a period of two to six months, then the trial cannot be more than two weeks. The trial period does not include periods of temporary disability of the employee and other periods when he was actually absent from the workplace. The duration of the test is established by agreement of the parties, but cannot be longer than that established by law.

Considering the practice, it is worth noting that the employer often extends the test already during the probationary period, which was agreed upon when drawing up the employment contract. This is directly against the law. This means that if before the end of the probationary period, which is contained in the contract, a decision is not made to dismiss the employee, then he will be considered to have passed the test.

It is worth saying that the law establishes for some cases a longer duration of the test in comparison with that established in Art. 70 of the Labor Code of the Russian Federation. An example can be civil servants (Article 27 of the Federal Law No. 79-FZ “On Civil Service”).

Dismissal of those who have not passed the probationary period: or how not to miss the moment

If, as a result of the test, it is revealed that the employee is not suitable, then the employer has the right to dismiss him.

It is worth noting that the law establishes a requirement for the employer that the employee must be warned of such dismissal in writing, and no later than seven calendar days before being fired. This provision is contained in Art. 71 of the Labor Code.

Dismissal should be carried out on the last day of the test. This is due to the fact that if the employee continues to carry out his activities after the end of the test, then he is considered to have passed the test. From this we can conclude that the very fact of passing the probationary period does not need to be formalized by any separate document.

This means that the employer must keep a good eye on deadlines. In the event of a decision to dismiss after the probationary period, a notice of this must be given to the employee no later than 4 working days in advance.

Such notice must include the following information:

The reasons due to which the employee is considered not to have passed the test;
Documents confirming them;
Date of dismissal.

This document must be handed over to the employee without fail for signature. It should also indicate the date of delivery. It is worth saying that it is better not only to list the reasons for dismissal, but also to make a link to the documents that confirm them. It is best to make copies of them and attach them to this notice. Then the employee will understand exactly what violations he committed during the test period.

The employee does not want to accept the notice? Here it is worth doing the following. The employer must draw up a statement about this. When compiling, some of the employees of the organization must be present. They, as witnesses, will certify with their signatures that the notification was handed to the employee, and also confirm his refusal to accept. A copy of the notice should be mailed to the employee at home by registered mail(this is due to the presence of a notice of delivery). In this case, the deadlines must also be observed. Such a letter must be sent to the post office no later than three days before the end of the probationary period. The date of such transfer is determined by the postmark on the receipt.

Upon dismissal as not having passed the probationary period, an order is issued in the form No. T-8 (for one employee) and No. T-8a (for several). On the day of dismissal, an entry is made in the work book with reference to the relevant norm of the Labor Code of the Russian Federation. The work book is returned to the employee.

If the test is passed...

Art. 71 of the Labor Code of the Russian Federation establishes that if the probationary period has ended, and the employee still continues to carry out work activities, then he is considered to have passed the test. From this provision it follows that if the test is passed, the employer may not notify the employee about this. But in practice it would be better to notify the employee. Such a notice will undoubtedly set the employee up for the further successful implementation of his activities. And for the employer, this is a good opportunity to harmlessly indicate which aspects of the work should be given more attention.

Payment during the trial period: how to pay?

Art. 70 of the Labor Code of the Russian Federation says that during the probationary period, the employee is subject to all the provisions of labor legislation and other acts. What does this mean for the employer? This excludes the establishment of a lower wages than the one installed. IN staffing all rates for each available position are indicated. And the salary for the trial period cannot be less than the specified one. Its underestimation is illegal.

But there are ways to set lower wages. An example would be the indexation of wages after the probationary period, the transfer of an employee to a different position in the staffing table.

Withdrawals during the probationary period

As already noted, during the probationary period, all provisions of labor legislation apply equally to the employee. That is, this means that it is possible for such an employee to apply measures of disciplinary liability for any disciplinary offenses during this period. Collection must be made in accordance with Art. 246-248 of the Labor Code of the Russian Federation, and bringing to full liability is carried out in accordance with Art. 242-244 of the Labor Code of the Russian Federation.

Thus, the trial period is an opportunity for the employer not only to get acquainted with a potential employee, but also to understand whether they will succeed in further cooperation.

New edition Art. 71 Labor Code of the Russian Federation

If the test result is unsatisfactory, the termination of the employment contract is made without taking into account the opinion of the relevant trade union body and without paying severance pay.

If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation and the subsequent termination of the employment contract is allowed only on a general basis.

If during the trial 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, notifying the employer in writing three days in advance.

Commentary on Article 71 of the Labor Code of the Russian Federation

The decision on how successfully the employee overcame the test is made by the employer. At the same time, the conditions must be explained to the employee in advance, the fulfillment of which will allow the employer to recognize the test as successful.

If, following the results of the test period, the employee meets the relevant conditions, then he is considered to have passed it and has the right to continue performing the work assigned to him in accordance with the employment contract ( labor function). Subsequent termination of the employment contract with this employee is allowed only on the general grounds provided for by the Labor Code of the Russian Federation.

If, however, the result of the test is found to be unsatisfactory, then the employer has the right, after the expiration of the test period, to terminate the employment contract with this employee, notifying him of this in writing and against signature no later than three days before the expected date of dismissal. In addition, the warning must indicate the reasons that served as the basis for recognizing the employee as having failed the test.

Termination of an employment contract with an employee who has not passed the test is carried out without taking into account the opinion of the relevant trade union body (regardless of whether the employee is a member of a trade union organization or not) and without paying him a severance pay. The decision of the employer to dismiss the employee in connection with the unsatisfactory result of the test, the latter has the right to appeal in court.

In conclusion, it is necessary to mention the possibility of a situation in which the employee, during the probationary period, on his own initiative decides to terminate the employment contract, for example, if he considers that the job (work function) offered to him is not suitable for him. In this case, no later than three days before the expected date of termination of work, the employee must notify the employer in writing of his intention, as provided for in Article 71 of the Labor Code of the Russian Federation.

Another commentary on Art. 71 of the Labor Code of the Russian Federation

1. The test is established in order to check the business and professional qualities of an employee. The employer, evaluating these qualities, decides on the fate of the employment relationship with this employee.

The decision on the results of the test is made by the employer on the basis of objective data characterizing the quality of the employee's performance of labor duties. The obligations of the employee follow from the content of the employment contract (see article 57 of the Labor Code of the Russian Federation and commentary thereto). Since the provisions of labor legislation, local regulations, a collective agreement, an agreement (see Article 70 of the Labor Code of the Russian Federation and a commentary thereto) apply to the employee during the probationary period, he is assigned not only rights, but also obligations arising from these legal acts. In particular, in accordance with the Code, the employee is obliged to comply with the internal labor regulations of the organization and labor discipline, comply with established labor standards, comply with labor protection and labor safety requirements, take care of the property of the employer and other employees (see Article 21 of the Labor Code of the Russian Federation and commentary thereto). Thus, during the test, the employer evaluates not only the level of professionalism of the employee (the quality of the work assigned within the framework of the stipulated labor function, the performance established norms labor, etc.), but also the quality of his performance of his duties, as well as his discipline.

2. Evaluating the results of the test as unsatisfactory, the employer is obliged to indicate the reasons that served as the basis for recognizing the employee as not having passed the test. As evidence of such reasons, acts on non-fulfillment of production standards, untimely or improper performance of assigned work, release of defective products, violations of internal labor regulations, other legal acts, the implementation of which is mandatory for the employee, etc.

An employment contract with an employee may be terminated at any time during the probationary period, as soon as the employer discovers facts of non-fulfillment or improper fulfillment by the employee of his labor duties. The employer must notify the employee in writing of the termination of the contract based on the results of the test no later than three days in advance, indicating the reasons that served as the basis for this. As follows from the content of Art. 71 of the Labor Code, the employer does not have the right to suspend the employee from performing labor duties for the specified three days, however, it is possible to reach an agreement between the employee and the employer to release the employee from performing labor duties immediately after the discovery of circumstances precluding the continuation of work, with the payment of wages three days in advance .

In the article, we remind employers of the procedure for establishing a probationary period. Using examples from judicial practice, let's pay attention to the mistakes that employers make when dismissing an employee who has not passed the test.

Who is not on probation?

Not everyone potential employees you can set a trial period. If the employer includes a test condition in an employment contract with a person who is prohibited from establishing a test, this condition will not be valid (part 2 of article 9 of the Labor Code of the Russian Federation).

The list of persons is determined by Part 4 of Art. 70, Art. 207 of the Labor Code of the Russian Federation and other federal laws:

pregnant women and women with children under the age of one and a half years;
under the age of 18;
who have received secondary vocational education or higher education in educational programs that have state accreditation and are employed for the first time in the acquired specialty within one year from the date of receiving professional education of the appropriate level;
concluding an employment contract for a period of up to two months;
invited to work in the order of transfer from another employer as agreed between employers;
successfully completed apprenticeship - when concluding an employment contract with the employer, under the contract with which they were trained (Article 207 of the Labor Code of the Russian Federation), etc.

If the employer establishes a probationary period for any of the listed persons, all the more, dismisses him as having not passed the test, he may be held administratively liable. The employee who applied to the court will be reinstated.

If, before the end of the probationary period, the employer finds out that the employee belongs to the category of persons for whom the probation is impossible, it is necessary to amend the employment contract. In this case, it is necessary to conclude an additional agreement to it, by which the test condition is canceled. Based on the agreement, an appropriate order should be issued.

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The procedure for terminating an employment contract with an employee who has not passed the test

The procedure for establishing a test for employment is established in Art. 70 of the Labor Code of the Russian Federation.

Step 1. The condition of a probationary period for an employee must be included directly in his employment contract. The absence of such a condition in the employment contract means that the employee is hired without a test.

The period of probation for employees may not exceed three months. For heads of organizations and their deputies, chief accountants and their deputies, heads of branches - six months. When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.

The probationary period does not include any periods of the employee's actual absence from work, including periods when the employee is on short-term leave without pay or on leave in connection with training, performing state or public duties, the period of absence of an employee from work without good reason (a period of absenteeism), a period of downtime, if the employee was absent from work during the downtime (Determination of the Supreme Court of the Russian Federation dated 04.08.2006 No. 5-B06-76). But it is impossible to dismiss an employee due to an unsatisfactory test result while he is on vacation or on sick leave.

Step 2 Based on the employment contract, which contains a condition on the establishment of a probationary period, the employer issues an order stating that the employee has been accepted with a probationary period, and indicates the period of such a probation.

We draw the attention of employers, if the condition of the test and its period are established only in the order, while not established by the employment contract, in this case, the employee will be considered hired without a test.

If an employee fails to perform his job duties during the probationary period, the employer has the right to dismiss him. The procedure for dismissal of an employee who has shown an unsatisfactory result is established by 71 of the Labor Code of the Russian Federation.

Step 3 The employer must confirm that the employee is not coping with work, because the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer (paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). In order not to become a defendant in litigation, it is advisable to create a work plan for the employee for a trial period, keep a log for monitoring the passage of the test, and request reports from the employee on completed tasks.

Step 4 Your decision to dismiss an employee must be supported by a number of documents. It can be:

various kinds of acts confirming the non-performance or poor-quality performance of the work assigned to the employee, stipulated by the employment contract or job description;
memorandum (official) notes or reports of the immediate supervisor of the employee or the person responsible for evaluating the test results;
witness's testimonies;
"peculiar" attestation (test) sheet and minutes of the meeting of the "peculiar" attestation (test) commission;
orders to apply a disciplinary sanction to an employee (which is not challenged or challenged);
written complaints (claims) from customers.

By the way, sometimes one memorandum (service) note may be enough to dismiss an employee. IN judicial practice there is such a case. The reason for the dismissal was a memo from the immediate supervisor of the employee. The document stated that the employee does not correspond to the position in terms of the quality of the work performed, he is lazy and lacks initiative in his work. The memo contained a proposal to terminate the employment contract with the employee as having not passed the test when hiring. The dismissal was recognized as lawful (Determination of the Leningrad Regional Court dated 07.12.2011 No. 33-5827 / 2011).

Step 5. It is necessary to warn the employee about the termination of the employment contract in writing: the facts indicating that the employee did not pass the test are recorded in the relevant act. This must be done no later than three days before the dismissal.

There is a case in judicial practice when the corresponding notice was drawn up and handed over to the employee only two days before the termination of the employment contract. The court recognized the dismissal of an employee as legal, even though the employer violated the dismissal procedure provided for in Art. 71 of the Labor Code of the Russian Federation (Cassation ruling of the St. Petersburg City Court dated August 29, 2011 No. 33-13139 / 2011).

A warning

Dear V.V. Smirnov!

In accordance with Art. 71 of the Labor Code of the Russian Federation, we warn you that the employment contract concluded with you is subject to early termination due to the fact that you are recognized as not having passed the test provided for by the employment contract, due to inconsistency with the position held and repeated violation of labor discipline and internal regulations of the organization .

Thank you for your work. You will be additionally informed about the procedure for settlement with the enterprise by your immediate supervisor.

We wish you all the best.

General Director Petrov S.S.

(title of the person who signed the document)

personal signature I.O. Surname

Date 18.07.2017

INTRODUCED

Job title personal signature ____________

(indicated by the employee by hand)

In the written notice of dismissal given to the employee, the employer must indicate the reasons for the dismissal. If the employee does not agree with the position of the employer, then this decision can be appealed in court. An analysis of judicial practice shows that the disputes considered by the courts are connected precisely with the violation by the employer of the procedure for dismissing an employee who has not passed the probationary period.

Step 6 So, the employee received a notification, signed, now after three days the employer issues a dismissal order, with which the employee must also be familiarized against signature. IN work book the following entry is made: “The employment contract was terminated due to an unsatisfactory test result, part one of Article 71 of the Labor Code Russian Federation».

If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation and the subsequent termination of the employment contract is allowed only on a general basis.

Step 7 On the day of termination of the employment contract, the employer is obliged to issue a work book to the employee and make settlements with him with the payment of all amounts due to the employee.

Also Art. 71 of the Labor Code of the Russian Federation establishes that if, during the probationary period, a newcomer comes to the conclusion that the job offered to him is not suitable for him, he has the right to terminate the employment contract at his own request, notifying the employer about this in writing in the same three days. That is, not only the employer can fire an employee on probation, but the employee himself can decide that the chosen company does not meet his expectations: career or salary - it doesn’t matter.

If the trial period was not enough to evaluate the ability of the employee ...

Then, by agreement with the employee, the probationary period can be extended by another month. True, Rostrud officials in Letter No. 520-6-1 dated March 2, 2011 argue that the possibility of extending the probationary period by amending the employment contract is not provided for by the labor legislation of the Russian Federation. Their opinion on this issue is the only one, since there are no other explanations, it is up to the employer to stick to it or ignore it.

Rostrud is not opposed to reducing the probationary period if the employee quickly showed himself in the best possible way. Letter No. 1329-6-1 dated May 17, 2011 concludes that, by mutual agreement, the parties have the right to conclude an additional agreement to the employment contract to reduce the probationary period. These changes will not be contrary to labor laws.

Dismissal of a part-time worker

The employer must notify the employee in writing of his intention to terminate the employment contract with the part-time worker on this basis at least two weeks before the expected date of dismissal.

The employer is not obliged to offer another job to a part-time worker. This is his right if the enterprise has other work that the employee can perform on a combination basis. If there is no such job or the employee refused the proposed option, then he is subject to dismissal and continues his work in the future. labor activity only at the main place of work. The refusal of the employee must be recorded in writing in the form, on its basis, the employer issues an order (instruction) to dismiss the employee with the execution of the documents listed above.

If the employer can offer the part-time job, which he does part-time, as the main one, then with the consent of the employee, it is necessary to conclude a new employment contract on new conditions or conclude an agreement on changing the terms of the employment contract.

If this option is not suitable for the employee and he refused the offer of the employer, then the part-time worker is subject to dismissal. Based on the considered written application, the employer issues an order (instruction) to dismiss the employee with the execution of the above documents.

conclusions

Summing up, once again pay attention to the main points that will help the employer avoid litigation. Everyone should remember them when setting a probationary period and dismissing an employee who has not completed the test.

Not all employees can be placed on probation. Dismissal on the basis of the results of a probationary period of a temporarily disabled employee, a pregnant woman or a woman with a child under the age of three years is unlawful;
The test is considered established if the relevant condition is included in the employment contract. The absence of a probationary clause in the employment contract makes it unlawful to subsequently apply the probationary period clause, even if it is enshrined in the collective agreement and in other local acts(application for employment, job description etc.);
Test results must be documented;

When concluding an employment contract, the employer and employee often establish a condition for testing the employee in order to verify his compliance with the assigned work. The maximum probation period is 3 months. As a result, the employer, in case of unsatisfactory results of work, has the right to dismiss the employee in a simplified manner, warning him of this in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. The employee has the right to appeal against the decision of the employer in court.

These relations are regulated by articles 70 and 71 of the Labor Code of the Russian Federation.

Accordingly, after 3 months, the employer often encounters a situation where the result of the employee obtained as a result of the probationary period is unsatisfactory, and for the employer, not passing the probationary period is the basis for dismissing the employee on the basis of part 1 of article 71 of the Labor Code of the Russian Federation. At the same time, disputes and conflicts often arise, which have to be resolved in court.

In this article, we will try to point out the most controversial situations related to dismissal on the basis of a probationary period.

Grounds for recognizing an employee as not having passed the test and their documentary evidence

The test in accordance with the provisions of the Labor Code of the Russian Federation is established for the purpose of checking the employee for compliance with the work assigned to him, the test is carried out during the entire period of the test (3 months). The assessment of the employee’s business qualities belongs to the exclusive competence of the employer, that is, it is a subjective criterion that must be documented (Appeal ruling of the Sverdlovsk Regional Court in case N 33-6450 / 2014).

As reflected in the Appellate Ruling of the Trans-Baikal Regional Court dated February 5, 2014 in case N 33-244-2014 (33-5077-2013), within the meaning of Part 1 of Article 71 of the Labor Code of the Russian Federation, the right to evaluate the results of an employee’s test belongs to the employer, who during the probationary period finds out business and professional quality employee, which can be confirmed by any objective data.

At the same time, the courts indicate that dismissal based on the results of the test should not depend on the personal qualities of the employee. During the probation period, the employee is subject to the provisions of labor legislation, local regulations, a collective agreement, an agreement, and not only rights, but also obligations arising from these legal acts are assigned to him. In particular, in accordance with the Labor Code of the Russian Federation, an employee is obliged to comply with the internal labor regulations of the organization and labor discipline, comply with established labor standards, comply with labor protection and labor safety requirements, take care of the property of the employer and other employees. Thus, during the test, the employer evaluates not only the level of professionalism of the employee (the quality of the employee’s performance of the work assigned within the framework of the stipulated labor function, the fulfillment of established labor standards, etc.), but also the quality of his performance of his duties, as well as his discipline (Appeal Ruling of the Sverdlovsk Regional Court dated December 20, 2013 in case N 33-15779/2013, Appeal ruling of the Kaliningrad Regional Court dated December 4, 2013 in case N 33-5165/2013, Ruling of the St. Petersburg City Court dated September 29, 2011 N 33-14786/ 2011).

In addition, as the Plenum of the Supreme Court of the Russian Federation explained in Resolution No. 2 of March 17, 2004 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" (paragraph 23), it is the employer who is obliged to prove compliance with the procedure established by law both for hiring an employee and his dismissal from work, as well as the existence of a legal basis for the dismissal of the employee.

Accordingly, when the employer decides to dismiss the employee following the results of the probationary period, the employer is obliged to indicate in writing the reasons that served as the basis for recognizing the employee as having failed the test, as well as to document the fact that the employee did not pass the test (Determination of the Sverdlovsk Regional Court dated 06.09. 2012 in case N 33-11173/2012).

In the same time labor law does not establish a list of documents that are evidencethe fact of an unsatisfactory test result.

From the evidence presented, it should follow how the level of professionalism of the employee was assessed, the quality of his performance of his duties (Appeal ruling of the Khabarovsk Regional Court dated June 19, 2013 in case N 33-3587 / 2013).

At the same time, the current legislation does not define specific criteria for assessing the business qualities of an employee, and the absence of a direct rule of law indicating certain reasons for concluding that an employee has not passed the test indicates a variety of circumstances taken into account by the employer when summing up the results of the test, which makes it impossible to establish a specific list in the law (Appeal ruling of the Rostov Regional Court dated December 18, 2014 in case N 33-17069/2014).

Below we consider the appropriate evidence of the fact that an employee on probation did not fulfill his labor duties, as well as the grounds for which the fact of an unsatisfactory test result was not proven.

As explained in the Ruling of the St. Petersburg City Court of September 29, 2011 N 33-14786 / 2011, which considered the case of the dismissal of an employee under part 1 of article 71 of the Labor Code of the Russian Federation in connection with an unsatisfactory test result when hiring, as evidence of the reasons , which served as the basis for recognizing the employee as not having passed the test, acts on non-fulfillment of production standards, untimely or improper performance of the assigned work, release of defective products, violations of internal labor regulations, other legal acts, the implementation of which is mandatory for the employee, etc. .

So in the Appellate ruling of the Chelyabinsk Regional Court dated August 7, 2014 in case N 11-8123 / 2014, the proper evidence confirming the fact of non-fulfillment of one's labor duties includes job descriptions, dismissal warnings, minutes of administrative meetings, testimonies of witnesses.

A similar position is also reflected in the Appellate rulings of the Moscow City Court of December 12, 2014 in case No. 33-46262/14, of the Rostov Regional Court of December 18, 2014 in case No. 33-17069/2014, of the Krasnoyarsk Regional Court of October 9, 2013 in case No. 33 -9614/2013, of the Moscow City Court dated 09/04/2013 in case N 11-28095.

At the same time, a memo from the immediate supervisor of the employee is sufficient evidence of the evaluation of the test results.

For example, in the Ruling of the Leningrad Regional Court of December 7, 2011 N 33-5827 / 2011, it is indicated that the reason for the dismissal was a memo from the immediate supervisor of the employee - the head of the site - addressed to the director of the branch, which, in particular, states that the employee, in terms of the quality of performance work does not correspond to the position held, the work is lazy and lack of initiative, the memo contained a proposal to terminate the employment contract with the employee, as if he had not passed the test when hiring. The dismissal was deemed legal. A similar conclusion is reflected in the Rulings of the Moscow City Court of February 14, 2011 in case No. 33-3766, of the Moscow Regional Court of January 17, 2012 in case No. 33-1156/2012.

At the same time, it should be noted that from the Ruling of the St. namely, the duties were not fulfilled by the plaintiff as the chief accountant, the plaintiff was not acquainted with the job description, the employer had no grounds for dismissing the employee due to failure to fulfill duties during the probationary period.

The court also satisfied the employee's demand for reinstatement due to illegal dismissal on the grounds that no specific reasons were indicated that served as the basis for recognizing the employee as having failed the test. This conclusion was based on the fact that the draft order to dismiss him from office is not sufficient evidence (Determination of the Primorsky Regional Court dated November 11, 2014 in case No. 33-10004).

A similar position is reflected in the Appeal ruling of the Yaroslavl Regional Court dated September 13, 2012 in case N 33-4848/2012, which considered the case on changing the wording of the dismissal, the recovery of wages for the time of forced absenteeism, and compensation for non-pecuniary damage. The court, satisfying the requirements of the employee, points out that the memorandum for dismissal on the basis of part 1 of article 71 of the Labor Code of the Russian Federation is not sufficient evidence. The court was not presented with sufficient and convincing evidence to reliably confirm the facts set out in the memorandum.

Thus, for proper test termination, the employer must document the existence of an unsatisfactory test result.

These documents may include:

acts (including acts on refusal to sign documents);
office notes;
witness's testimonies.

Additional evidence may include:

job requirements (non-compliance);
management evaluation.

At the same time, the fact of improper performance by the employee official duties supported by the totality of the evidence presented.

In addition, it is desirable to indicate specific duties that were not performed by the employee undergoing probation, despite the fact that this condition was not established. Labor Code RF.

Dismissal based on the results of the test in the event that the condition of the probationary period is not reflected in the employment contract.

If an employment contract was concluded with an employee, in which at the time of conclusion there was no condition on a probationary period, then the employer, if this condition is subsequently included in the employment contract, is not entitled to dismiss the employee on the basis of part 1 of article 71 of the Labor Code of the Russian Federation.

This conclusion is based on the position of the Cassation ruling of the Tula Regional Court dated April 26, 2012 N 33-1090. The court pointed out that the employment contract containing the probationary condition for a period of three months was signed later than the employee began to perform her job duties, therefore, dismissal under part 1 of article 71 of the Labor Code of the Russian Federation was unlawful.

In the case when the employee is actually admitted to work without drawing up an employment contract, the probation condition may be established by a separate agreement concluded before the start of work. Since neither the employment contract nor the said agreement has been executed, the employee is considered hired without a probationary period (Appeal ruling of the Moscow City Court dated July 18, 2014 in case N 33-21880, Appeal ruling of the Krasnoyarsk Regional Court dated April 10, 2013 in case N 33 -3356/2013, Cassation ruling Supreme Court of the Udmurt Republic dated October 10, 2011 in case No. 33-3632/11.

Thus, the absence of a probation clause in the employment contract means that the employee was hired without a probationary period, despite the fact that this period is established by an additional agreement (in the event that the agreement is signed after the conclusion of the employment contract), or established by other internal local acts, such as job description, employment order, etc.

Dismissal based on the results of a probationary period of a temporarily disabled employee, a pregnant woman ora woman with a child under the age of three.

Article 71 of the Labor Code of the Russian Federation does not establish whether it is lawful to dismiss, on the basis of the fact of an unsatisfactory test result, a temporarily disabled employee, a pregnant woman or a woman with a child under the age of three.

On May 12, 2014, the Appellate Instance of the Moscow Regional Court considered case No. 33-10264 / 14 on the reinstatement of a pregnant employee who was dismissed due to an unsatisfactory test result. The court concluded that the employer had no legal grounds for dismissing the employee under part 1 of article 71 of the Labor Code of the Russian Federation due to an unsatisfactory test result, since at the time of dismissal the employee was pregnant.

This position is common in judicial practice, while the courts do not depend on the fact that the employer did not know about her pregnancy upon dismissal of the employee following the results of the probationary period (for example, see the Appeal ruling of the Moscow City Court dated 02.10.2013 in case N 11- 31566/13).

It is also impossible to dismiss a temporarily disabled employee if the employee has documents confirming temporary disability (Appeal ruling of the Moscow City Court dated December 18, 2014 in case N 33-40905, Appeal ruling of the Supreme Court of the Republic of Bashkortostan dated June 13, 2013 in case N 33-6685 / 2013).

The same applies to dismissal based on the test results of a woman with a child under the age of three. The employer is not entitled to dismiss this employee (Determination of the Moscow City Court dated November 08, 2011 in case N 33-35701).

Thus, the dismissal of a temporarily disabled employee, a pregnant woman or a woman with a child under the age of three years based on the results of a probationary period is unlawful, since dismissal under Part 1 of Article 71 of the Labor Code of the Russian Federation refers to dismissal at the initiative of the employer.

It should be noted that the employee, as a result of wrongful dismissal based on the results of the test, has the right to demand compensation for moral damage (Article 237 of the Labor Code of the Russian Federation, Cassation ruling of the Supreme Court of the Udmurt Republic dated 10.10.2011 in case N 33-3632/11; Determination of the Moscow City Court dated case No. 4g/5-4354/11).

Conclusions:

In order to dismiss an employee based on the results of the probationary period, the employer must indicate in writing the reasons that served as the basis for recognizing the employee as having failed the test, as well as documented the fact that the employee did not pass the test.

In this case, documents confirming the fact of not passing the test must be submitted in aggregate.

The absence of a probationary period clause in the employment contract makes it unlawful to subsequently apply the probationary period clause, even if it is enshrined in the collective agreement and other local acts (employment order, job description, etc.).
Dismissal on the basis of a probationary period of a temporarily disabled employee, a pregnant woman or a woman with a child under the age of three is unlawful.