home Audience 4 A person is hired on a probationary period, how to fire him. Notification of failure to complete the probationary period: sample. Dismissal during a probationary period at the initiative of the employer

A person is hired on a probationary period, how to fire him. Notification of failure to complete the probationary period: sample. Dismissal during a probationary period at the initiative of the employer

Anyone who has ever had to change jobs knows what a probationary period is. This article will discuss the problem of dismissal during the probationary period, both at the initiative of the employer and at the will of the employee. We will also consider the issue of registration and timing of termination of an employment contract, as well as judicial practice in cases of dismissal during the probationary period.

The condition of the probationary period is not essential for the employment contract, since Art. 70 of the Labor Code of the Russian Federation states that the condition of a probationary period may be provided for when concluding an employment contract, i.e. this condition is optional. In practice, in the vast majority of cases, employers establish a trial period. Moreover, the basis is indicated in the same article. 70 of the Labor Code of the Russian Federation - checking the employee’s compliance with the assigned work. However, this condition can also be regarded as one of the employee’s protection mechanisms, since he has the opportunity to terminate the employment contract as soon as possible, without working for 2 weeks. On the one hand, the probationary period allows the employer to verify the knowledge, experience and qualifications of the candidate. On the other hand, the new employee gets the opportunity to understand whether this company suits him and whether he intends to continue working in it. In this way, the rights of both the employee and the employer are protected.

Test period

If the employment contract includes a condition for a probationary period, then in accordance with Art. 70 of the Labor Code of the Russian Federation, this period cannot exceed 3 months, and for managers, their deputies and chief accountants - 6 months. When concluding an employment contract for a period of 2 to 6 months, the trial should last no more than 2 weeks. Thus, maximum terms are established by law, which cannot be changed by agreement of the parties - only at the federal level. Clause 1 of Art. 27 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” establishes that for state civil servants the probationary period can range from 3 months to one year. When appointed to the position of prosecutor or investigator of the prosecutor's office, this period can reach 6 months (Article 40 of the Federal Law of January 17, 1992 No. 2202-1 “On the Prosecutor's Office of the Russian Federation”). At the end of the probationary period, it should be remembered that it does not include the period of temporary incapacity for work of the employee and other periods when he was actually absent from work.

As noted earlier, an employment contract during the probationary period can be terminated not only at the initiative of the employer, but also at the request of the employee himself. At the same time, Article 71 of the Labor Code of the Russian Federation establishes a three-day period for dismissal from the date of filing such an application. Thus, the employee will have to “work” only 3 days – as opposed to the usual two-week period.

If the initiative to dismiss during the probationary period comes from the employer, the employee must also be notified of this at least 3 days before the actual termination of the employment relationship. If the employer did not announce the termination of the employment relationship during the probationary period and at the end of the probationary period the employee continues to work, the newcomer will be considered to have successfully passed the test. If an employer fires an employee during the probationary period, such a decision can be challenged in court.

Persons who are not subject to the test

The law provides for a list of persons who, in accordance with Art. 70 of the Labor Code of the Russian Federation does not establish a probationary period. These include:

Employees selected by competition;
- pregnant women and women with children under the age of one and a half years;
- persons under 18 years of age;
- young specialists, i.e. graduates who have graduated from state accredited educational institutions of primary, secondary and higher vocational education and who are entering work for the first time in their specialty within one year from the date of graduation from the educational institution;
- persons elected to an elective position for paid work;
- persons invited to work by way of transfer from another employer as agreed between employers;
- persons who have entered into an employment contract for a period of up to 2 months.

This list is not exhaustive and may be expanded by other federal laws or a collective agreement.

Since these persons are not given a probationary period, they can only be dismissed in accordance with the general procedure, i.e. on the grounds provided for in Chapter 13 of the Labor Code of the Russian Federation.

I would like to focus on two categories of workers: young professionals and women with children under the age of one and a half years. According to Art. 70 of the Labor Code of the Russian Federation, persons who have graduated from state accredited educational institutions of primary, secondary and higher vocational education and who are entering work for the first time in the acquired specialty within one year from the date of graduation from the educational institution are not subject to the test. Even if a student did not work in his future specialty during his studies, then when hiring for a position that corresponds to his qualifications, the employer cannot set him a probationary period. However, in practice, employers often take advantage of the legal illiteracy of young specialists and impose on them a test requirement. On the other hand, by hiring a young specialist without work experience, the employer takes a certain risk. Even after several interviews, it is quite difficult to determine the level of knowledge of such a candidate, and it is also unknown whether he will be able to apply it in practice.

Currently, legislative provisions regarding the protection of the rights of women with children under one and a half years old are being actively discussed. It is prohibited to establish a probationary period for such workers. What should single fathers with children of the same age do? It turns out that they can be fired during the probationary period, since the law does not directly indicate the protection of the rights of fathers? Such dismissal can only be challenged in court. There is a gap in the legislation, since Article 19 of the Constitution of the Russian Federation enshrines the equality of citizens, in particular, regardless of gender. Part 2 of the same article states that men and women have equal rights and freedoms and equal opportunities for their implementation. So in this case we can talk about a violation of the rights of single fathers raising children under the age of one and a half years without a wife.

Test result

If the employee continues to work after the expiration of the probationary period, then he is recognized as having passed the test and after that can be dismissed only in accordance with the general procedure. In practice, there are often cases when an employer at the initial stage reduces an employee’s salary, promising to increase it at the end of the probationary period. However, this is a violation of the law. Firstly, the Labor Code of the Russian Federation does not regulate the specifics of remuneration during the probationary period. Secondly, in accordance with Art. 135 of the Labor Code of the Russian Federation, the conditions of remuneration determined by the employment contract cannot be worsened.

If the test result is unsatisfactory, the employee may be dismissed at the initiative of the employer. As noted earlier, the employee must be notified about this 3 days in advance. The Labor Code of the Russian Federation does not provide a list of documents that an employer must present when dismissing an employee. However, the fact that the employee did not pass the test must be documented - in case of possible litigation. Otherwise, the employer will not be able to prove that the employee really did not pass the probationary period in terms of his professional qualities. As an option, it is worth giving the employee written tasks, demanding a weekly report on the work done, etc. The employer can also draw up a notice of unsatisfactory test results in two copies and familiarize the employee with it against signature. If an employee refuses to sign such a document, an act can be drawn up in the presence of his colleagues.

Let's consider an example from judicial practice. In January 2011, citizen B. filed a claim against LLC “L***” in the Kyzyl City Court of the Republic of Tyva for reinstatement at work, recovery of average earnings for the period of forced absence and compensation for moral damage.

During the trial, it was established that B. was accepted into a separate division of L*** LLC as a cook, and an employment contract was concluded with her with a probationary period of 3 months. Before the expiration of the specified period, the plaintiff was dismissed on the basis of Part 1 of Art. 71 of the Labor Code of the Russian Federation as having failed the test. She considered the dismissal illegal, since the act on which the order was based did not correspond to reality. This act cited the decision of a commission of three people who, having studied the reports of cook Ch., doctor of the Todzhinsky Central Clinical Hospital O. and nurse S., decided to terminate the employment contract with the plaintiff. B. argued that these facts did not actually occur, and the unflattering reviews of O. and B. were the result of hostile relations with the plaintiff because of the dorm room they occupied together. The plaintiff also claimed that no checks were carried out on these reports.

The defendant's representative did not admit the claim and explained that the plaintiff was dismissed as having failed to complete her probationary period. The basis was reports from a doctor and a nurse at the Todzha Central Clinical Hospital. To check the facts, a commission was created, on the basis of whose acts the dismissal order was issued.

Based on the materials presented, as well as the testimony of witnesses, the court decided to partially satisfy the claim. The court motivated its decision as follows.

According to Parts 1 and 2 of Art. 71 of the Labor Code of the Russian Federation, if the test result is unsatisfactory, the employer has the right, before the expiration of the test period, to terminate the employment contract with the employee, warning him about this in writing no later than 3 days in advance, indicating the reasons that served as the basis for recognizing the employee as having failed the test. The employee has the right to appeal the employer's decision in court.

Thus, termination of the employment contract under Art. 71 Labor Code - in connection with an unsatisfactory test result - in accordance with clause 4 of Art. 77 of the Labor Code, refers to the termination of an employment contract at the initiative of the employer. Accordingly, the latter is obliged to indicate in writing the reasons that served as the basis for recognizing the employee as having failed the test.

B. was warned of dismissal in a written notice, which indicated as the grounds for dismissal the reports of cook Ch., doctor O. and nurse S. These notes stated the following facts: the plaintiff went to work not at 6 a.m., but at 8:30 am and she smelled of alcohol; in September, B. showed up to work drunk and drank alcohol in the evening with the drivers.

From the plaintiff’s explanations it followed that the conflict between her, O. and S. arose due to living in the same room. According to B., she made comments to them about violating the rules of residence. According to the plaintiff, her partner Ch. went to sleep 3-4 times a day, and she did not have time to cook food for 80 people alone.

Medical workers O. and S. confirmed the fact of hostile relations between them and B., while S. testified at the court hearing that the plaintiff coped with her official duties.

T., questioned as a witness, testified that he worked as the head of the Kyzyl-Tashtyg deposit of L*** LLC and the plaintiff was subordinate to him. There were no complaints about her work, no complaints were received from employees. Medical workers did not contact T. about the quality of food or sanitary conditions. After the security chief reported that the plaintiff was drunk, he initiated an investigation, but the fact was not confirmed.

Witness P., who worked at L*** LLC, stated that the food was normal, B. cooked well.

Since neither party filed a request to question Ch. as a witness, the court relied only on his written reports. The fact that B. went to work later than the established time was not verified and was not proven. Also, the report that the plaintiff showed up to work in a drunken state in September was not confirmed. Witness T. denied this fact.

Thus, the defendant did not present data to the court that objectively testified to the plaintiff’s improper performance of her official duties. The testimony of witnesses O. and S. could not be considered objective due to the conflictual relations that had developed between them and the plaintiff. In addition, the statements of O. and S. were refuted by the testimony of witnesses T., P. and B., the reliability of which the court did not doubt.

Also, the defendant did not provide evidence of violation of labor discipline by the plaintiff in the form of appearing at work in a drunken state.

Since the court did not establish the legality of the plaintiff’s dismissal on this basis, B. was subject to reinstatement at work. The court also decided to pay B. average earnings for the entire period of forced absence and compensation for moral damage. The amount of compensation was 3,000 rubles.

In the current court case, the employer was unable to prove the lawfulness of the dismissal. The grounds were memos, but the circumstances indicated in them were not verified. The plaintiff rightfully went to court. From the case materials it follows that there were no grounds for her dismissal as having failed to complete her probationary period.

The second option for terminating employment relations during the probationary period is a resignation letter from the employee himself. Such an application is also submitted 3 days before the termination of the employment contract. The employee gets the opportunity to resign as soon as possible and start looking for a new job.

During the probationary period, the employer must evaluate only the professional, and not the personal, qualities of the employee. The decision should not be influenced by circumstances such as, for example, the social adaptation of the employee in the team. The purpose of the probationary period is, first of all, to check the employee’s suitability for the position held, and for the employee to assess the prospects for further activity in the company.

It is much easier to fire an employee during the probationary period than after it ends. However, any dismissal can be challenged in court. And, if the employer does not provide written evidence of the employee’s inadequacy for the position held, he will be forced to reinstate him at work, as well as pay wages for the period of forced absence. In addition, the employee may demand compensation for moral damage. Therefore, the employer should collect evidence confirming the employee’s inadequacy for the position held if there are real reasons to believe that the employee cannot cope with the duties assigned to him. The employer should also know for which persons a probationary period is not established, since otherwise he risks breaking the law.

Alexandra Ilyinskaya,
National Union of Personnel Officers

Probation

To check the employee’s suitability for the work assigned to him, a probationary period may be included in the employment contract. We talked in ours about the maximum duration of a probationary period, as well as about the categories of persons who cannot be placed on probation.

Successful completion of the test does not require any documentation. The employee simply continues to work in the position for which he was hired. Can they be fired during a probationary period?

An unsatisfactory test result gives the employer the right to dismiss the employee “under the article”. However, an employee can resign during the probationary period on his own initiative. Dismissal during the probationary period at the initiative of any party to the labor relationship has its own characteristics. We will talk about them in this material.

Dismissal during a probationary period at the initiative of the employer

If the test results were found unsatisfactory, the employer can terminate the employment contract with the employee without taking into account the opinion of the trade union (if it was created) and without paying severance pay (Part 2 of Article 71 of the Labor Code of the Russian Federation). How to fire an employee during a probationary period? The main thing here is to follow a certain procedure.

The employment contract with an unsuitable employee must be terminated before the expiration of the probationary period. In this case, no later than 3 days before dismissal, the employer must warn the employee in writing about the upcoming termination of the contract. We gave an example of notifying an employee of dismissal. The notice of dismissal of an employee on probation must indicate the reasons why the employee was found to have failed the test. We talked about the criteria that an employer uses when making decisions about the results of an employee’s test in a separate article.

Based on the employer’s decision to dismiss the employee, a dismissal order is issued, which the employee must sign. On the day of termination of the employment contract, the employer is obliged to issue the employee a work book and other documents related to the work, as well as make the final payment (including pay compensation for unused vacation) (Part 1, 4, Article 84.1 of the Labor Code of the Russian Federation) .

How to make an entry in the work book about the dismissal of an employee during a probationary period? There is a special article for dismissal during a probationary period of the Labor Code of the Russian Federation. This is part 1 of article 71 of the Labor Code of the Russian Federation. That is, in the work book you need not only to provide a link to this article, but also to decipher that the dismissal is made due to failure to complete the probationary period (Part 5 of Article 84.1 of the Labor Code of the Russian Federation). The wording in the work book will look like this (clauses 15, 18 of the Rules, approved by Government Resolution No. 225 of April 16, 2003):

“The employment contract was terminated due to unsatisfactory test results, part one of Article 71 of the Labor Code of the Russian Federation”

The employer’s decision to dismiss an employee due to an unsatisfactory test result can be appealed by such employee to the court (Part 1 of Article 71 of the Labor Code of the Russian Federation).

Dismissal during a probationary period at the initiative of the employee

Is it possible to resign at will during a probationary period? As we indicated, an employee can be dismissed during a probationary period at the initiative of the employer. And to the question “Is it possible to quit during a probationary period” the answer is also affirmative. After all, the Labor Code of the Russian Federation does not limit the employee’s right to dismissal on his own initiative. Moreover, dismissal during the probationary period is simplified for an employee.

How can an employee resign during a probationary period? If during the probation period the employee realizes that the job is not suitable for him, he turns to the employer with a free-form application in which he asks to terminate the contract at his own request. At the same time, you need to notify the employer about dismissal, if the probationary period has not yet expired, not 2 weeks, but only 3 calendar days before dismissal (Part 4 of Article 71 of the Labor Code of the Russian Federation).

When can you quit during a probationary period? An employee can resign during a probationary period at any time. The Labor Code of the Russian Federation does not establish a minimum period that an employee must work. However, it must be taken into account that a resignation letter must be submitted at least 3 days in advance and this period begins to run from the day following the day the employer receives the application.

Regardless of whether the employee resigns during the probationary period or at any other time, a single entry is made in the work book. If you are dismissed on your own during the probationary period, you must write it down in your labor record (Clause 3, Part 1, Article 77, Part 5, Article 84.1, Clauses 14, 15 of the Rules, approved by Government Resolution No. 225 of April 16, 2003, clause 5.2 of the Instructions, approved by Resolution of the Ministry of Labor dated October 10, 2003 No. 69):

“The employment contract was terminated at the initiative of the employee, paragraph 3 of part one of Article 77 of the Labor Code of the Russian Federation”

The Labor Code of the Russian Federation does not prohibit an employer from dismissing an employee at his own request, even if the employee has not passed the test. After all, it is unlikely that an employee would want to have a record of dismissal due to unsuitability in his work book. If the employer does not mind, the employee can submit a resignation letter of his own free will. But here it is important for the employer to take into account compliance with deadlines and possible risks. After all, for example, such an employee may withdraw an employee’s application for resignation at his own request, and the employer may no longer have time left to comply with the dismissal procedure under Part 1 of Art. 71 Labor Code of the Russian Federation.

It is also important to remember that an employer cannot dismiss an employee undergoing testing if such an employee is on sick leave or on vacation (Part 6 of Article 81 of the Labor Code of the Russian Federation). But on his own initiative, an employee can quit during these periods.

Almost every organization has a probationary period. This period of time is needed to look at the employee in action, how well he copes with his responsibilities, as well as the skills and knowledge stated in the questionnaire. But it happens that during the test, an employee is clearly not suitable for the company and must be fired. Then he must be given a notice of failure to complete the probationary period. Every organization should have a sample of this document.

What are the nuances of this procedure and how to do it correctly within the framework of the law?

Grounds

During the test, the employment agreement can be terminated either at the request of the employee or at the request of the employer.

If for any reason an employee no longer wants to work in this organization, he is obliged, even during the probationary period, to notify his superiors of the termination of the employment agreement.

Dismissal during a probationary period at the initiative of the employer can occur when he is dissatisfied with the employee’s work or unsatisfactory results of the post-training inspection. In this case, the employee must declare failure to pass the test and terminate the agreement.

But you can’t just fire an employee. You need to support your decision with strong evidence:

poor performance of tasks;
failure to fulfill assigned duties;
inability to perform assigned work to the extent required;
mismatch of qualifications;
systematic violations, ignoring the rules and regulations established in the organization;
violation of labor laws.

The reasons why the labor relationship breaks down when the probationary period is not passed should not be generalized, but rather specific.

Employer's obligation

The direct responsibility of the employer is not only to comply with the dismissal process from beginning to end, but also to document the termination of the contract due to failure to complete the probationary period.

To do this, during the test it is necessary to provide the employee with those responsibilities that are directly related to his position. Writing assignments may cause trouble for the company, but it is more acceptable from the point of view of the law. The employee must provide reports on the work done. Based on these documents, the employer can prove that the employee performed his work unskilled and, therefore, did not pass the test.

In order for the dismissal to be justified and lawful, it is necessary to properly hire the employee. The fact of the probationary period must be specified in the employment agreement. It is also necessary to specify what payments and in what quantities the employee is entitled to during the trial. The most important thing is that the document contains the signature of the employee. This means that he is satisfied with all the working conditions and probationary period.

The order specifies the duration of the test. It is also necessary for the employee to review the test completion document and sign.

Any violation of labor legislation, as well as inattention to the execution of documents on the part of management, may lead to the employee’s disagreement with the reason for dismissal and an appeal of this fact in court. And the court will be on the side of the former employee, and this threatens the organization with fines and various compensations.

Don’t forget about the notice of failure to complete the probationary period, a sample of which should be available in every organization.

How to fire

Management has the right to dismiss an employee at any time during the trial, if this is provided for by labor legislation and does not violate the rights of the employee. Strict adherence to formalities is required.

How to fire an employee for failing to complete the probationary period? Let's consider a step-by-step algorithm for this process:

Preparation of documentation that confirms the legal grounds for the decision made.
Delivery of notice confirming dismissal due to failure to pass the test. This document must contain information that was the reason for dismissal: untimely completion of assigned tasks, non-compliance with work rules, disciplinary violations, poor quality work.
Drawing up a dismissal order. Here the employee is required to sign as a sign of agreement with the reasons and fact of dismissal.

Recording in labor

If dismissal occurs during a probationary period at the initiative of the employer, then a corresponding entry must be made on the employment form. According to all the rules of labor legislation, the labor form is filled out as follows:

The first column contains the serial number of the entry.
The second column contains the date of dismissal, which must coincide with the date the order was drawn up.
The third column indicates the reason for dismissal and the article of the Labor Code of the Russian Federation referred to by the employer (Example: Dismissed due to unsatisfactory completion of the probationary period, part 1 of Article 71 of the Labor Code of the Russian Federation). The same column indicates the details of the authorized person and the employee himself.
The fourth column contains information about the document on the basis of which the dismissal occurred.

Payments

To ensure that no violation of labor laws is detected, a dismissed employee who does not pass the test is also entitled to payments upon settlement. These include:

wages for the period of time worked (it should not be deliberately reduced);
compensation for unused vacation (these payments are made only if the employee has worked for at least 15 days).

All payments due to a citizen must be paid no later than the next day after dismissal.

Deadlines

According to the general rules, when dismissing at the initiative of an employee, the employer may require 14 days of work. If dismissal occurs during probation, this period is significantly shortened. Firstly, the manager is required to notify the employee three days in advance of the upcoming dismissal. Secondly, he must personally deliver a notice of failure to complete the probationary period (a sample document is presented below).

By agreement of the parties, the employee may resign on the same day on which he received the notice.

Controversial nuances

When an employment contract is terminated due to failure to complete the probationary period, various conflict situations may arise. The possibility of judicial intervention cannot be ruled out. The cause of a controversial situation may be:

What should pay attention to for employees who take up a position with a probationary period:

availability of a written document that the employee signs personally;
compliance with dismissal deadlines;
the presence in the notification of the reason provided for in Art. 81 Labor Code of the Russian Federation.

You should know that the date of dismissal must be within the probationary period.

The ability to apply the test to new employees is enshrined in Article 70 of the Labor Code of the Russian Federation. Its provisions are aimed at protecting the interests of the employer from careless and incompetent employees. This raises the question: how to fire an employee during a probationary period without complications?

The state, represented by supervisory and judicial authorities, when a conflict arises, takes the side of the employee as the more vulnerable party in labor relations. Wherein:

during the test, the employee is subject to the full range of guarantees provided for by the Labor Code of the Russian Federation, the collective labor agreement and his own contract;
The procedure for dismissing a subject is no less complex and responsible than that of a permanently employed person, although it involves specific grounds and shortened terms.

In addition, the lack of evidence of the reasons for dismissal, errors in paperwork or violation of deadlines may serve as grounds for:

reinstatement of a dismissed person to a previously held position;
recovery of wages and other payments in his favor for the entire period of forced downtime (from the moment of dismissal until rehire);
awarding compensation for moral damages in his favor.

A logical conclusion follows from this: you should not neglect checking the competence and business qualities of the applicant, relying on the opportunity to get rid of him in the future. Rather than subsequently getting involved in bureaucratic formalities and thinking about how to fire someone during the probationary period, it is better to spend time on a detailed study of the resume and recommendations, interviews, tests and inspections.

Risks of verbally agreeing to a trial

The employer’s desire to be “in business” is quite natural. However, it often translates into inappropriate actions. An individual entrepreneur or the head of an organization actually allows a person to work, thinking that in case of professional unsuitability he will be able to pay him in cash for the days actually worked and say goodbye without registration.

By taking such a step, the employer is at great risk, since a legally “savvy” employee, after working for several days, can legally request registration of an employment relationship. In this case, it will no longer be possible to include a test clause in the contract. Why is this happening:

A contract not drawn up in writing is considered concluded if a person began work on behalf of or at least with the knowledge of the administration (Part 1 of Article 67 of the Labor Code).
The employer is obliged to draw up and sign an agreement with the person actually employed for a period not exceeding three working days (Part 2 of the same article).
If the employee is actually allowed to work, the probationary clause becomes impossible to include in the contract.
The previous rule provides for only one exception - the preliminary (that is, prior to the actual start of work) signing of a separate, properly executed probation agreement (Article 70 of the Labor Code).

By taking the risk of agreeing on a probationary period verbally, the employer may receive one of the most unpleasant consequences:

be bound by a permanent employment relationship with an employee who is unsuitable and aggressive towards the administration, and who can only be dismissed on a general basis with two months’ notice;
legal action for reinstatement;
complaints to labor protection authorities and the prosecutor's office;
relevant inspections.

We provide the possibility of dismissal in advance

From Art. 70 of the Labor Code, it is obvious that when hiring a person with a test, an employment contract should be correctly drawn up and signed, which clearly states the need to pass the test as a condition for continuing the employment relationship, its duration and procedure for passing it.

When establishing a test, the personnel officer must make sure that the employee does not fall into the category of persons who should not be subjected to it, namely:

elected through competition;
Pregnant women and mothers of children under one and a half years old;
minors;
graduates of educational institutions who graduated no more than a year ago are finding employment for the first time;
invited by transfer;
concluding a contract for a period of no more than two months.

It is important to set a period sufficient to identify the real professional level of the candidate and at the same time not exceed the established limits:

3 months (general rule);
6 months for management: directors; managers of branches or separate divisions; their deputies; chief accountants;
2 weeks if the contract period is from two months to six months.

It is worth taking care in advance to, if necessary, dismiss an employee during a probationary period as justifiably as possible. It is necessary that the employee not only read, but also familiarize himself with a signature with the key documents regulating his activities:

labor regulations of the institution;
job description;
labor protection rules;
collective agreement;
regulations on the structural unit (if any);
charter of the enterprise (if we are talking about the manager).

Without doing this, it is very difficult to motivate dismissal. At a court hearing, the employee will reasonably be able to dismiss accusations of inactivity or temporary absence. The employer will be at fault if:

did not clearly establish the terms of reference;
did not warn at what time the working day begins and at what time the lunch break begins;
did not establish a workplace for the employee.

Documenting the test to justify dismissal

Article 71 of the Labor Code establishes the possibility for both parties to the labor relationship to refuse to continue cooperation:

An employee’s question about whether it is possible always assumes an affirmative answer. He is not obliged to justify his refusal to continue the employment relationship in any way.
The employer, on the contrary, must prove the unsatisfactory outcome of the test. In this case, you can build on the procedure used by government agencies. It would be advisable to do the following:

draw up an individual program of activities for the trial period and approve it at least at the level of the head of the department;
familiarize the employee with it against signature;
appoint a responsible employee as his supervisor;
document the results of the subject’s implementation of planned activities: keep records of the work done and at the same time monitor its quality.

The test program should be designed so that:

it corresponded to the range of job responsibilities;
the employee could demonstrate his skills and abilities;
the subject could be given individual tasks as needed.

Obviously, documenting the trial will take time and resources. But in the end it will pay off because:

will open up opportunities to objectively evaluate the employee’s performance during the test period;
if the result is negative, it will provide an opportunity to justify dismissal.

Unsatisfactory test result as a reason for termination of the contract

Employers are wondering whether it is possible to fire an employee during a probationary period due to dissatisfaction with the results of his work. They should also form the basis for the formulation of the reasons for termination of the contract, reflected in two documents - notice of dismissal and order.

A negative test result must be documented. Depending on the employee’s field of activity, these purposes may include:

commission acts on defects made;
written claims and complaints from customers about improper service and unskilled work;
poorly written and executed documents;
memos from the immediate superior stating that the subject is unable to cope with his job responsibilities;
You can also refer to the facts of disciplinary action.

Regarding a negligent employee, the thought often arises: is it possible to fire him before the end of the probationary period? Although termination of the contract occurs based on the results of the test, the employer is not obliged to wait for the expiration of the established verification period and can make a decision earlier, as soon as it is convinced of unsatisfactory test results and receives evidence of this fact.

Applicability to the subject of the general grounds for termination of an employment contract

During the test period, the employer is not limited by the requirements of Art. 71 TK. You can also dismiss during a probationary period on general grounds (Article 81 of the Labor Code):

liquidation of an institution or curtailment of the activities of an individual entrepreneur;
staff reductions;
inconsistency with the work performed or position held due to insufficient qualifications established by the results of certification;
repeated failure by an employee to fulfill official duties without good reason, subject to prior application of a reprimand or other disciplinary sanctions;
single gross violation;
absenteeism – absence from work for four hours or more during one day without good reason;
the appearance of an employee on the territory of the organization while drunk;
disclosure of personal data, commercial or other secrets into which the employee was privy in connection with the performance of his job duties;
committing theft at the place of work, including petty theft, intentional damage or destruction of the employer’s property;
immoral act of a teaching worker;
violations of labor safety rules, duly recorded by a specialized commission, if it had serious consequences (accident, accident, catastrophe) or carried the threat of their occurrence;
guilty actions of an employee working with valuable property or money, if they resulted in a loss of trust;
submission of false documents by the applicant when applying for a job.

This is also true for the management team.

Work is not the only component of our life. It happens that, not having time to find the desired position, you have to leave it for family reasons. Another thing is also possible: a person was forced to start performing not the most suitable duties, when suddenly his dream job turned up. In these and similar cases, a number of questions arise: “How to quit,” “What payments can you claim?”, “Is the employee required to work for two weeks or some other period?”

An employee is included in the organization's staff if:

the employment contract is drawn up and signed;
a record of employment has been made in the work book;
an order was issued in this regard, the contents of which were familiarized to the hired person against his signature.

The legal fact of employment (no matter with or without a probationary period) quickly goes beyond the boundaries of the enterprise. Social insurance funds and employment promotion agencies are notified about it. Publicly initiated legal relations between an employer and an employee are subject to official termination.

And vice versa - if no papers were drawn up, but there was a verbal agreement, you can do without formalities. Individual entrepreneurs and small firms often avoid registration at an early stage. According to the requirements of Art. 67 of the Labor Code of the Russian Federation establishes that:

from the moment a person is actually admitted to work, he is employed;
a written employment contract must be concluded within three working days;
If a person is already working, you cannot draw up a contract with a probationary period.

This article is intended to protect the rights of the employee. The employer, of his own free will, does not recognize the fact of using unregistered hired labor. Therefore, a person working at his own discretion can:

just leave (with or without explanation);
demand proper registration of labor relations and payment of wages;
demand compensation for actual time worked.

General points of dismissal during the test

Article 70 of the Labor Code of the Russian Federation, by mutual agreement, allows the inclusion in an employment contract of a condition establishing a trial period. Verbal agreements in this regard are not permitted. If the contract does not clearly provide for a test, the employee is considered hired without it.

The trial period is intended to:

the employer could verify that the employee’s candidacy meets the requirements;
the applicant had the opportunity to make sure that the established range of responsibilities was within his capabilities, that he would get along with the team and that the working conditions met his needs.

If one of them comes to the opposite conclusion, there is no need to wait until the end of the trial period to terminate cooperation. Moreover, it can be quite long:

up to three months (general rule);
up to six – for directors, deputies of institutions, as well as their separate divisions;
up to two weeks – when concluding a contract for a term of 2 to 6 months.

The test period is subject to extension if it coincides with sick leave, vacation, etc.

The question of whether someone can be fired during a probationary period clearly assumes an affirmative answer. An individual entrepreneur or the administration of an institution is obliged to notify an employee of a planned dismissal against signature at least three days before this event, indicating the grounds for recognizing him as having failed the inspection. In this case, termination of the employment contract occurs:

without taking into account the position of the trade union body;
no severance pay.

In this regard, an order to terminate the contract is issued. On the day of dismissal:

full payment is made to the employee;
he is given a work report with a note about the unsatisfactory result of the test as the reason for dismissal and a reference to clause 1 of article 71 of the Labor Code of the Russian Federation.

Naturally, such a fact will not contribute to further employment. If there are grounds for dismissal, it is worth agreeing to change the wording of its reasons to more favorable ones (for example, “at one’s own request”). To do this, you can use a personal request or even the threat of legal action. You need to apply quickly - before the employment form is filled out and the information is sent to the control structures. The notice of impending dismissal and the order themselves are internal documents of the company that can be rewritten without any problems.

If a person was fired during a probationary period for far-fetched reasons, it is worth filing a lawsuit. Claims can sound in two ways:

on the resumption of labor relations;
about changing the reasons for dismissal.

The employer must confirm an inadequate test result with conclusive evidence. Otherwise, the claim must be satisfied. It is unlikely that the employee expects further cooperation, however, if he did not officially work from the moment of dismissal until the court ruling, he will be paid wages for the period of forced downtime. During the test period, the employee is fully subject to the requirements of labor legislation, including penalties. An employee may be dismissed on the general basis specified in Art. 81 Labor Code for absenteeism, theft at the place of work, etc.

Letter of resignation during probation period

The Labor Code of the Russian Federation adheres to the line of protecting the interests of the worker as the weak side of labor relations. Unlike the employer, who must motivate the dismissal, the employee is not obliged to do this.

If an employee wants to resign during the probationary period, it is enough for him to notify the individual entrepreneur or the administration of the institution with a statement in any form. This must be done in advance - three days before the planned departure.

It happens that managers refuse to sign such a statement. There is no point in insisting. If we are talking about a large institution where the office is physically separated from the directorate, it makes sense to copy the completed application and take it to the reception. Give the original and ask for an acceptance mark to be placed on the copy. It includes:

“corner” stamp of the institution;
current date;
Full name, position, signature of the receiving employee.

This is standard procedure for filing official documents. In the vast majority of cases, secretaries do not request permission from the manager for such actions. The day of registration is the date of notification of the planned dismissal. If you are unable to register your application, you can send it by courier or mail. You can prove the fact of sending by using the form of a recommended letter or a valuable letter with an inventory.

Deadlines and processing

Dismissal at the initiative of an employee, as a general rule, requires a two-week period of work. Art. 71 of the Labor Code shortens this term during the test period to three calendar days. When calculating, the first of these is considered to be the day following the date the organization received the employee’s application (in person or by mail). If the last day of work falls on a non-working day, you can quit on the next working day.

Circumstances for dismissing an employee without work

Working off is not established imperatively. If the employer is not interested in it, he can let the employee go earlier. The latter has the right to demand dismissal on the day of filing the application in the following circumstances (subject to documentary evidence):

the spouse is sent to work in another city;
an illness has been identified that prevents the performance of certain work functions;
care is required for a group I disabled person or a sick family member;
an appointment to a position was made through a competition;
enrollment in full-time studies;
retirement;
the worker is a pensioner or; a pregnant woman or a mother with a child under 14 years of age; raising three or more children.

Other nuances

How can I resign at the end of my probationary period? On the last day of this period, you can quit without working. If the employee starts work the next day, he is considered employed on a permanent basis. Further, dismissal at will will take place in the general regime, that is, with a two-week period of work.