Dismissal as a person who has not completed the probationary period, an entry in the labor record

Establishing a probationary period for an employee implies that the employer’s representative constantly monitors his work, recording all the employee’s achievements and shortcomings using specially provided documents.

When an employee is told that his work does not meet the requirements set out in his job description, and management notifies him of his impending termination during a probationary period, he may not agree. However, he will have to challenge this situation either in the labor inspectorate or in court.

Dismissal of someone who has not passed the probationary period

In Art. 71 of the Labor Code of the Russian Federation states that if an employee has not completed the probationary period, the employer can fire him. However, there are several features of dismissal during a probationary period at the initiative of the employer. The employer is obliged to confirm the incompetence of the employee. If this is not done, then the employee has the right to sue the employer for “illegal dismissal as someone who has not completed the probationary period” Article 71 of the Labor Code of the Russian Federation. If the employer does not justify the dismissal during the test, then the employee has every chance to be reinstated in the workplace, receive a salary for forced absence, and also demand compensation for moral damage. To document the incompetence of an employee, you need to worry about this in advance. It is necessary to document every professional “mistake” of such an employee. The employee must sign a document that confirms his professional oversight. In addition to him, the document is signed by 2 more witnesses.

Not only a negative result can cause the dismissal of an employee during a probationary period. It can be:

absenteeism;
failure to comply with labor discipline or internal regulations;
unprofessional behavior.

That is, an employee on a probationary period can be fired on the same grounds as an employee working on a general basis. The employer is obliged to notify the probationary employee of the impending dismissal. This must be done within 3 days. In addition, the notice must also indicate the reason for dismissal. These 3 days are called compulsory work. Although, if the parties reach an agreement, then the employee can be fired without it. For employees dismissed as having not completed their probationary period, the same norms of the Labor Code of the Russian Federation apply as for employees working on a permanent basis. You cannot dismiss an employee for failure to pass the test if he is on sick leave. But the employee must present a sick leave certificate to the employer. However, the days that the employee spent on sick leave are not taken into account when calculating the length of the probationary period. Therefore, if the probationary period ended while the employee was sick and the employer “did not have time” to fire him, the latter can extend the probationary period for the duration of the employee’s sick leave. After such an employee returns to work, the employer has the right to dismiss him as having failed to complete the probationary period.

How to easily fire an employee if he has not passed the professional selection process: step-by-step instructions and reasons

If an employee is dismissed for failing to complete the probationary period, the employment contract (agreement) with him or her is terminated. The algorithm for how to fire an employee who fails the test can be briefly presented in 4 steps:

Written notification to an employee of dismissal (Part 1 of Article 71 of the Labor Code of the Russian Federation).
Preparation and issuance of a dismissal order.
Carrying out final settlement with the dismissed person.
Issuance of a work book.

According to Art.
71 of the Labor Code of the Russian Federation, if an employee was unable to successfully complete the probationary period, then the employer can officially dismiss him. In order to dismiss an employee without problems (that is, without the latter going to court), the employer needs to take into account some of the nuances of such a legal procedure.

Thus, the dismissal of an employee during a probationary period must be carried out in accordance with the labor legislation of the Russian Federation and confirmed by relevant documents (the intricacies of dismissal during a probationary period and about working out are described here). The employer is obliged to officially confirm the incompetence of the employee.

The following documents are used as significant evidence:

acts confirming the results of the test (for example, minutes of a meeting of the certification commission);
memo, report or personal reference from your immediate superior;
acts, orders, explanatory notes on bringing the employee to appropriate disciplinary liability for failure to complete specific tasks;
employee log book;
written explanations from the employee regarding failure to complete certain tasks;
orders imposing a specific disciplinary penalty;
written complaints from various clients, etc.

If significant evidence is not provided, the employee can file a lawsuit against his employer for illegal dismissal as a person who has not completed the probationary period (Article 71 of the Labor Code of the Russian Federation).

If the employer loses the case, then the dismissed employee has a real opportunity to be reinstated in his previous job and receive compensation for absenteeism and for causing moral damage.

The following are also recognized by law as grounds for dismissal of an employee who has not completed the established probationary period:

various violations of labor discipline (appearing at work drunk, regular tardiness, insubordination, etc.);
unprofessional behavior (for example, committing immoral acts);
absenteeism - absence from work for more than 4 hours in a row;
committing various offenses (theft, destruction, embezzlement of the organization’s property, etc.).

All of the above legal grounds are reflected in Art. 81 Labor Code of the Russian Federation. However, such misconduct does not necessarily result in dismissal. Thus, the employer can issue a verbal warning (in particular, if there are various valid reasons for missing work).

In addition, there are certain categories of persons who are not subject to dismissal during the probationary period. These are the following employees (Article 261 of the Labor Code of the Russian Federation):

women with children under 3 years of age;
pregnant women;
mother/father is the sole breadwinner of one or more disabled children under the age of 18, etc.

At the same time, pregnant women and women with children under the age of one and a half years cannot be accepted for a probationary period at all.

Also, according to the law, it is impossible to dismiss an employee if he is on sick leave during the probationary period. However, as proof of this fact, he must show his immediate superior a certificate of incapacity for work (sick leave).

An employee who has not completed the established probationary period can be dismissed on the same legal grounds as an employee working on a general basis.

We also have interesting articles about voluntary dismissal during a probationary period and about settlement from work after this period.

Notification of failed employee

If an employee fails the test, his employer has the right to early cancel the employment contract (agreement) with him for this reason. Notice of dismissal is drawn up in writing and sent to the dismissed employee no later than 3 days before the day of dismissal. However, such a decision of the head of the organization can be officially appealed in court (Part 1 of Article 71 of the Labor Code of the Russian Federation).

Such written notice must include the following information:

name, tax identification number, checkpoint, location address and telephone numbers of the enterprise (organization);
title of the document (“Notice”);
reference to the employment contract or agreement (number, date of execution);
reasons for dismissal (with reference to the Labor Code of the Russian Federation) with a mandatory indication of the reasons why the employer considers the test to have failed;
number, date of notification;
position, full name of the person being dismissed;
signature of the head of the organization (director);
seal of the organization.

The main thing is that from the written notice of dismissal it should be clear on what legal basis the employee’s professional incompetence was recognized (for example, a memo from the boss, a certificate of marriage, etc.).

A similar notification is drawn up at the secretariat and signed by the director of the enterprise. Such a document is handed over personally or sent by mail to the employee’s residence (registration) address.

Before drawing up a written notification, a separate conclusion on the results of the test is drawn up. Such a document is usually drawn up by the immediate superior. Such a written conclusion records the employee’s violation of official duties.

However, the list of such violations may not be indicated in the written notice of dismissal. Here reference is made to the conclusion about the final results of the test.

An employee who has not completed the probationary period is not paid severance pay. In such a situation, there is no need to take into account the opinion of the company's (enterprise) trade union on this matter (Article 71 of the Labor Code of the Russian Federation).

Issuance of an order

If an employee fails the appropriate test, the head of the organization issues an order to dismiss such employee. Moreover, the dismissed employee must familiarize himself with this order against signature.

After the order is issued, the dismissed employee is given a work book and certified copies of other documents related to work. In addition, he is paid:

salary;
compensation for unused vacation days;
other required payments (Article 84.1 of the Labor Code of the Russian Federation).

Many employers are confident that a written notice of dismissal and an order to conduct such a personnel event are the same thing. However, it is not. It is necessary, even before issuing the order, to send a notice to the employee that he will be officially dismissed.

Procedure

If an employee has not completed the established probationary period, then the head of the company/employer can officially dismiss him in accordance with Art. 71 Labor Code of the Russian Federation.

The official procedure for dismissal is as follows:

3 days before the official dismissal, the employer sends the employee a written notice of the cancellation of the employment contract (agreement) with him.
An official dismissal order is issued.
On the day of dismissal, the employee is issued a work certificate and is paid the money due to him (salary, compensation).

All payments are made on the last working day.

Issuance of a work book

The issuance of a work certificate upon dismissal due to failure to complete the probationary period is confirmed by the employee’s personal signature on the unified form card No. T-2 and in a separate work journal - the labor accounting book. If the dismissed employee is not at work on the specified day, he is sent by mail a written notice of the issuance of a work permit. As a result, the employer is relieved of administrative responsibility for the formal delay in issuing the work book.

Can an employee disagree with dismissal?

When hiring an employee, the company must familiarize him with the internal labor regulations, job descriptions and a number of other local documents.
Establishing a probationary period for an employee implies that the employer’s representative constantly monitors his work, recording all the employee’s achievements and shortcomings using specially provided documents.

Important! In the case where an employee refused to sign all documents related to his work, as well as acts of violation of labor discipline, orders, acts of refusal must be drawn up in the presence of witnesses.

The employee must understand that if the company has properly executed relevant documents, then his refusal to dismiss will lead to nothing, and he will most likely lose in court.

How to fire an employee on a probationary period without his desire according to the law?

Can they be fired during a probationary period? They can, but the employee has the right to refuse to sign the document if he does not agree with its contents. In this case, an act of refusal is drawn up with 2 witnesses.

Most often, the “trial period” ends with dismissal due to systematic disciplinary violations (absenteeism, tardiness) and insufficient qualifications of the subject.

If a person is on a probationary period, how to fire him without litigation, the Labor Code of the Russian Federation will help.

IMPORTANT: A notice of dismissal of an employee during a probationary period at the initiative of the employer must contain references to all documented facts of violations and poor quality work.

Dismissal of an employee during the probationary period

employees hired on a competitive basis to fill the relevant position;
pregnant women;
mothers who have at least one child under 1.5 years of age;
minor citizens;
young specialists finding employment for the first time in accordance with their acquired profession;
subjects appointed to elective positions in the state apparatus or local government;
transferred from other companies by agreement of managers;
who have entered into a contract for a period of up to two months.
the wording must clearly indicate the subordinate’s desire to end the relationship, for example, “I ask you to terminate the employment contract”;
the date of dismissal, indicated without pretext, allows you to accurately determine the last working day, for example, “I ask you to fire me on May 22”;
the document must be certified by the signature of the employee, otherwise it has no legal force.

Delaying the testing period

Another common violation is the establishment of unreasonably inflated probationary periods for workers. It should be remembered that the test period cannot exceed three months. When concluding a fixed-term employment contract for a period of 3 to 6 months, the trial period cannot exceed two weeks.

The period of temporary incapacity for work and other periods when the employee was actually absent from work are not included in the probationary period.

A longer probationary period may be established for a limited list of employees. These include:

heads of organizations;
deputy managers;
chief accountants and their deputies;
heads of branches, representative offices or other separate structural divisions of organizations.

For them, the trial period can be as long as 6 months. For all others – maximum 3 months.

How to justify it correctly

There is a misconception among employers that during the entire probationary period it is permissible to simply dismiss an employee without giving any reasons, simply because he was “not suitable.” This is completely incorrect, and this action can be protested by the employee in court, and the employee himself, by a court decision, can be reinstated in his job.

To avoid such problems, it is necessary to prepare thoroughly for the possible dismissal of employees who have not completed the probationary period. The following documents can serve as confirmation of the legality of dismissal:

memos from the immediate supervisor;
acts on the release of low-quality products;
complaints from colleagues and clients;
explanatory notes from the employee on facts of failure to complete tasks or violation of labor discipline rules;
various disciplinary sanctions;
reviews, characteristics of managers, mentors responsible for completing the probationary period.

Naturally, it is not at all necessary to have all the above documents, but it is advisable to prepare at least several such evidence of dishonest or unskilled work.

If the employer subsequently decides to retain the employee to continue cooperation, these documents simply will not be needed. But their presence makes claims against the employee much more significant.

If an employer decides to dismiss someone who has not completed the probationary period, they must be notified in writing of the upcoming dismissal 3 working days in advance. The notice of dismissal is drawn up in 2 copies; upon delivery, the employee must put the date and personal signature on the employer’s copy. If the employee refuses to confirm the fact of receipt of the notice, then a corresponding entry is made about delivery on a copy of the notice, which must be confirmed in writing by two witnesses.

Next, the manager issues a dismissal order with appropriate wording.

The work book also records dismissal due to unsatisfactory results of the probationary period. The work book is issued to the dismissed employee with a personal signature on the last working day, if he is present at work on that day. If he is absent, on the same day you should send him a notification by registered mail about the need to obtain a work book, so the employer will protect himself from possible claims about the untimely issued work book.

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The employee must also receive the final payment on the last working day. And in his absence - the next day after applying for payment.

It should be remembered that no severance pay is provided upon dismissal without completing the probationary period.

It can also be noted that during the probationary period, the employee has the same rights as the employer, that is, he can quit by notifying the employer 3 days in advance if he decides that the working conditions do not suit him.

Despite the fact that formalizing the resignation of an employee during an internship is easier than starting the dismissal procedure after a probationary period, it is clear that this action requires carefully prepared documents and additional time and effort on the part of the employer. Meanwhile, many employees, understanding the employer’s intention to fire them under Article 71 of the Labor Code of the Russian Federation, are often ready to compromise and terminate the employment contract by agreement of the parties, which is much less labor-intensive for the employer and often saves him a lot of nerves.

Causes

The reason for dismissal during a probationary period at the initiative of the employer may be one of those specified in Article 81 of the Labor Code of the Russian Federation. An employee who has not passed the probationary period must know the reason for failure to pass.

Reasons for failure to complete the probationary period:

disciplinary violations of the employee;
inconsistency between the newcomer’s qualifications and the position held;
bankruptcy or liquidation of the company;
reduction of staff in a specific department or the entire organization as a whole;
transfer of an employee to another organization with the consent of the parties;
change of owner of the company, and the employee’s reluctance to continue cooperation with him;
the company moves to another location and the employee refuses to follow the employer;
unilateral change by the employer of the terms of the employment contract and the employee’s refusal to comply with them;
other grounds for failure to complete the probationary period.

We will consider below how to formalize and confirm an unsatisfactory result.

REFERENCE: Let us remind you that dismissal due to failure to complete the probationary period (Article 71 of the Labor Code of the Russian Federation) is legal, and also according to the Labor Code of the Russian Federation, the grounds for dismissal due to failure to complete the probationary period must be recorded.

It means that:

The fact of a violation can be confirmed by witnesses.
There is evidence of the trainee's guilt.
There are written explanations from the employee.
The subject is familiar with the drawn up acts.

Entry in the work book about dismissal as someone who has not completed the probationary period

An example of this condition can be viewed here. Indication of the above in internal documents, for example, in an order, is not mandatory; in any case, it is void.

The key point is indicated above: if there is no such provision in the agreement, then there is no test, accordingly, exemption under Art. 71 will be illegal and easily challenged in court. In addition to general reasons, in this case you can even use such reasons as lack of harmony in a team (but this must be proven, conflict situations with witnesses must be recorded).

Typical reasons are as follows: If the hired citizen continues to perform his duties, then he is considered to have successfully completed the test and can be dismissed under Art.

71 TC is not allowed. These periods also include the following: The employer must be aware that he will be punished if he breaks the following rule.

Peculiarities of work and dismissal during the probationary period

The existence of a probationary period must be stipulated in the labor relations agreement concluded between the employee and the employer . In the absence of such a clause in the employment contract, it is considered that it was concluded without a probationary period. The introduction of a probationary period after drawing up the contract is not provided for in additional agreements. If the employee did not enter into an employment contract, but began to actually perform his work duties, a probationary period also cannot exist in this case - such work is considered equivalent to concluding a full-fledged employment contract for a full term.

An important fact is that special conditions of dismissal apply not only to the employer, but also to the employee. Thus, for voluntary dismissal while on a probationary period, it is allowed to notify the employer not two weeks, but only three days before the date of dismissal.

Good reasons for dismissal

According to surveys, in 67% of cases, the employer evaluates how successfully the probationary period was completed by the quality of the completed tasks assigned to the new employee, in 61% of cases by his professional suitability for the position held

Some employers pay attention to mistakes made, as well as established KPI indicators

The reasons for dismissing an employee should always be related to failure to fulfill work duties and obstruction of the work process. It is impossible to fire a person for his personal qualities, beliefs and passions if this does not interfere with his ability to perform his job duties. A notice of upcoming dismissal must always indicate a valid and truthful reason, otherwise the employee will be able to challenge the decision in court.

Dismissal as someone who has not completed the probationary period may be carried out for one of the following reasons:

Disciplinary violations – coming to work drunk or under the influence of drugs, failure to comply with the work schedule, failure to show up for work on a working day.
Poor performance of duties - disruption of the production process, reduction in productivity indicators, inappropriate treatment of the organization's clients.
Failure to comply with internal regulations - the employee does not wear a uniform, if provided, does not adhere to the dress code and safety regulations.
Late execution of instructions if this interferes with the normalization of the work process.

Can they be shortened during the probationary period? Read here.

Watch a video that will tell you in detail about the dismissal of an employee who has not passed the probationary period.

If the reason for dismissal is disciplinary inadequacy of the position or failure to fulfill duties, it is advisable to have documentary evidence of violations. Documents such as reports and explanatory notes, complaints against an employee from clients and colleagues, confirmation of the production of low-quality products, as well as oral and written testimony can easily convince the court of the legality of the employer’s actions.

Information on compensation for dismissal during a probationary period can be obtained from this link.

It is better to discuss possible reasons for dismissal due to an unsatisfactory test result with the employee before signing the employment contract. A preliminary agreement documented by the terms of the contract will increase the employer’s chances of winning in litigation if they arise.

Let's sum it up

The probationary period when hiring is introduced by the employment contract and PVTR, and the responsibilities of the new employee are determined by the job description and work plan.
The fact of failure to pass the test is recorded by orders on disciplinary sanctions, acts, memos, explanatory and other documents.
The dismissal procedure due to unsatisfactory test results includes mandatory notification to the employee, issuance of a dismissal order, entering data into the work book and information about work activities.

Documentation of the terms of the probationary period

Legislatively, the possibility of dismissing an employee during a probationary period is enshrined in Part 1 of Art. 70 Labor Code of the Russian Federation. In this case, such dismissal is permitted only if, at the time of employment, the employee was notified of the probationary period in writing. This is enshrined in the following documents:

The order of acceptance to work. In the appropriate column of this document, it is necessary to note the presence and duration of the probationary period.
Employment contract. When signing this document, you must also indicate information about the probationary period. Otherwise, the employee will be considered employed in the general manner, so it will not be possible to dismiss him as someone who has not completed the probationary period.

The condition must be included in both of these documents. As for the work book, when filling it out, it is not necessary to indicate the fact that a probationary period has been established.

The employee confirms his consent to this condition when signing the contract, as well as when drawing up an application for employment.

In this case, it is worth taking into account the maximum possible duration of the probationary period established by law:

2 weeks - for employees working under short-term employment contracts (from two months to six months);
3 months - for all other employees with open-ended or long-term contracts;
6 months - for testing top management (director, deputy director, chief accountant).

The manager has the right to set a shorter period, but he cannot increase it. This is allowed only if the employee is absent from his workplace.

For example, this can happen during sick leave, free vacation, absenteeism or forced downtime.

Then the probationary period can be extended by the number of days the employee is actually absent.

Is it possible to fire an employee after the end of the term?

An employer may justifiably dismiss an employee by giving him prior notice at any time during the probationary period. Afterwards, there is no point in thinking about how to fire before the end of the probationary period, because as soon as the period is over, the trainee automatically becomes part of the organization’s staff.

According to the Labor Code of the Russian Federation, an employer cannot now fire a specialist for unsatisfactory test results, because the work is assessed by other criteria.

As you can see, the procedure for dismissing an employee during a probationary period is quite simple. The article examined in detail how to fire during the probationary period and under what article to fire an employee who has not completed the probationary period. Guided by the information received, you will be able to protect yourself from lawsuits and raids by labor inspectors.

Dismissal of someone who has not completed the probationary period of the Labor Code of the Russian Federation

Many employers believe that it will be enough to fix the probationary term only in the employment order, but this position is wrong. Because if the labor agreement does not specify a probationary clause, the organization’s worker will be considered hired without a probationary period and it will not be possible to dismiss him as someone who has not passed the probationary period.

regulations on internal labor regulations, which should be in every organization and are developed, as a rule, on the basis of a standard one;
a job description developed specifically for the workplace where the employee was hired and approved by management;
local regulatory documents that regulate the activities of the trainee at a specific place of work (instructions, orders, regulations);
an order for employment was issued, with which he must have been familiarized with his signature.

Dismissal for failure to complete probationary period

If the employer's assessment of the new employee's test results is unsatisfactory, this will entail the dismissal of the latter in a simplified manner provided for in Part 1 of Article 71 of the Labor Code of the Russian Federation, namely, the employee is dismissed after appropriate notice given three days before the last day of work, indicating the reasons termination of the contract.

The employer does not have the right to decide that the new employee has not completed the probationary period and dismiss him on the basis of Part 1 of Article 71 of the Labor Code of the Russian Federation at a time when the employee is on sick leave or on vacation, because such actions are prohibited by part 6 of article 81 of the Labor Code of the Russian Federation.

Dismissal of an employee for failure to complete the probationary period

In order for an employer to have the opportunity to fire an employee who has not passed the test, the probationary period must be fixed in the employment contract with the employee and in the order for his employment. In Art. 70 of the Labor Code of the Russian Federation also describes the method of formalizing a probationary period in the form of an agreement that must be signed by the employee before starting work.

How and under what article to dismiss an employee who has not completed the probationary period

Submit a written notice of your decision, which is handed to the applicant against signature (at the latest, three days before the end of the test). Copies of evidence (journal entries, complaints, reports) of the candidate’s inadequacy for this position are attached to the notification.
Over the next three days, a dismissal order is issued, the enterprise block in the work book is closed, and the employee’s final payment is made.
If the employee does not want to sign the notice, a report is drawn up stating that the company has complied with all the conditions of the trial period, with the certifying signatures of witnesses and copies of documentary evidence attached.
If a person does not appear at the company from the moment the notification document was delivered to him, you should send him a letter to his registration address, which will inform him that his work documents and settlement amounts can already be collected.

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Art. 71 not only provides for an accelerated dismissal process, which can be completed within just three days (instead of two weeks). Employers are allowed not to wait until the end of the probationary period to terminate the employment relationship if there are serious violations on the part of the employee.

Undesirable consequence

Dismissal as someone who has not completed the probationary period must be carried out in accordance with the law. Because a dissatisfied employee suspended from work has the opportunity to appeal this in court.

If the employer is not completely convinced of the sufficiency of evidence that will confirm the negative outcome of the test, it is better to choose a different course of action. Eg:

terminate the contract due to repeated failure to fulfill official duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
dismiss by agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

Sample notice of failure to complete the probationary period

Currently, employment in most companies requires a probationary period. During the probationary period, the company's management evaluates the professional and personal qualities of the employee, and at the end of it, makes a decision on the employee's further work in the company. If the employee fails the test, he may be summarily dismissed on the basis of notice. In this article we will talk about notification of failure to complete the probationary period and the mechanism for dismissing an employee.

The current legislation does not provide clear criteria according to which an employee is considered to have passed/failed the probationary period. Each company develops requirements individually and approves them in internal regulatory documents. To maintain transparency and to avoid claims from the employee, the company’s management, as a rule, defines separate criteria and requirements in the context of the activities of a specific division.

Sequence of termination of an employment contract

1. Before the dismissal procedure, the worker must receive notice of failure to complete the probationary period. Here is a sample of it.

The notice is sent by mail confirming the grounds according to which the employee had to be dismissed as having failed to complete the probationary period. Having read it, he must put a signature on the employer’s copy indicating receipt of the notice. If the worker does not want to sign, a corresponding act should be drawn up with the signatures of two eyewitnesses.

2. Issue an administrative document on termination of the employment contract on the basis of Art. 71 Labor Code of the Russian Federation.

3. Make a cash settlement with the employee on a general basis.

4. On the day of dismissal, give back to the failed employee, against signature, a work book with a note about dismissal under Part 1 of Art. 71 Labor Code of the Russian Federation. If the worker is absent from work on the day of payment, he must be informed by mail so that he does not forget to pick up the work book.

Risks in case of violation of the dismissal procedure due to failure to complete the probationary period

In this case, in particular, the following risks are possible:

administrative liability under Parts 1, 2 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation - for various violations of the dismissal procedure. For example, this is possible if you fill out your work book incorrectly;
administrative liability under Parts 6, 7 of Art. 5.27 Code of Administrative Offenses of the Russian Federation and financial liability under Art. 236 of the Labor Code of the Russian Federation - for non-payment or incomplete payment upon dismissal of amounts due to the employee (if your actions do not contain a criminal offense). For example, this is possible if you do not pay the compensation due to the employee for unused vacation;
financial liability in accordance with paragraph. 4 tbsp. 234 of the Labor Code of the Russian Federation for a delay in issuing a work book or incorrectly indicating in it the wording of the reason for dismissal;
declaring the dismissal illegal and reinstating the employee at work with payment of his average earnings for the entire period of forced absence and other amounts (for example, legal costs). Such conclusions follow from paragraph. 1, 2 tbsp. 234, part 1, 2 art. 394 Labor Code of the Russian Federation, Part 1, Art. 98 Code of Civil Procedure of the Russian Federation, para. 2 - 4 clause 53, para. 1 clause 60 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2. For example, this is possible if the court finds your evidence that the employee did not pass the test unconvincing, or if you fire the employee outside the probationary period.

conclusions

If the employee has not completed the probationary period, every employer should know how to fire the employee without breaking the law. There may be slightly more grounds for dismissal during a probationary period than with the usual termination of a full-time employee’s contract at the initiative of the employer. In this case, the payment amount may be less. The employee also has the right to quit if the new place and working conditions do not suit him, without going through a mandatory rest period of 2 weeks.

However, do not forget about the length of the probationary period, after which you will have to terminate the employment contract. If it is not terminated, it will no longer be possible to separate in a simplified manner - the employee will be considered accepted for permanent cooperation.

Is it possible to extend the probationary period?

As mentioned above, extending the probationary period or establishing a second one immediately after the first is prohibited. But in this case, we were talking only about the option when the employer, based on the results of the probationary period, cannot decide whether to keep the employee at the enterprise or fire him - then extending the probationary period is really impossible.

But you need to know and remember that the probationary period includes only those days when the employee was present at the workplace. If, during the test, the employee, for example, took part in military training or was sick - that is, was actually absent from the workplace, albeit for a good reason - these days are not counted towards the probationary period. Therefore, if, according to the contract, the probationary period ends, and the employee has “missed” days, an order can be issued to extend the probationary period.

Such an order must contain a reference to the reason why the probationary period is being extended; it is also advisable to attach explanatory documents from the employee to the order, for example, a copy of a sick leave certificate or a call to military training.

Only in this case is it allowed to extend the probationary period.

What is a probationary period?

A probationary period is a period agreed upon with the employee and specified in the employment contract, when the employer determines whether the qualifications and personal qualities of the employees meet the requirements that the employer places on its employees in general and for this position in particular.

For his part, during this period the employee can also take a closer look at the employer, the enterprise and the team and decide whether these conditions are suitable for him.

At the same time, the probationary period from the outside does not differ from the usual labor process - except that dismissal during the probationary period occurs according to a simplified procedure, which makes the probationary period so attractive for many employers.

The probationary period is established only by agreement with the employee. If an employee refuses to undergo a probationary period, no one can impose tests on him.

Who cannot be fired due to an unsatisfactory test result?

Do not dismiss an employee due to an unsatisfactory test result if at least one of the following conditions exists:

there is no probationary clause in the employee’s employment contract, since this means that the employee is not given a probationary period (Part 2 of Article 70 of the Labor Code of the Russian Federation);
The test period has expired (Part 3 of Article 71 of the Labor Code of the Russian Federation). This also applies to those cases when, in violation of Parts 5, 6 of Art. 70 of the Labor Code of the Russian Federation, an employee is subject to a test when hiring for more than is permissible, and at the same time, the period provided for by law has expired;
A probationary period is prohibited for an employee by law or collective agreement by virtue of Part 4 of Art. 70, part 1 art. 207 Labor Code of the Russian Federation. Such employees, for example, include pregnant women, minors;
an employee cannot be fired on your initiative, since such grounds, according to clause 4, part 1, art. 77 of the Labor Code of the Russian Federation, also applies to dismissal based on the results of the test. Employees who cannot be dismissed at the initiative of the employer include:

— a pregnant employee or one who has a child under three years old (part 1, 4 of article 261 of the Labor Code of the Russian Federation);

- a single mother with a child under the age of 14 years (a disabled child under 18 years old) or a person raising a child of the specified age without a mother (part 4 of article 261, article 264 of the Labor Code of the Russian Federation, paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 01/28/2014 N 1);

- the sole breadwinner of a disabled child under the age of 18 or a child under the age of three in a family with three or more young children, if the second parent (legal representative) does not work (Part 4 of Article 261 of the Labor Code of the Russian Federation);

- an employee who is on sick leave or on vacation on the day of dismissal (Part 6 of Article 81 of the Labor Code of the Russian Federation). In this case, the dismissal must be postponed. Do not worry that due to the employee’s vacation (illness), you may miss the dismissal period, since these periods are not included in the probationary period, taking into account Part 7 of Art. 70 Labor Code of the Russian Federation.

Is it possible to dismiss for failure to complete the probationary period if the employee has not been subject to disciplinary action?

Yes, you can.

Dismissal due to an unsatisfactory test result is not always associated with the employee committing a disciplinary offense, since dismissal itself under Part 1 of Art. 71 of the Labor Code of the Russian Federation is not a disciplinary sanction. This follows, in particular, from Part 3 of Art. 192 Labor Code of the Russian Federation. The basis for dismissing an employee due to an unsatisfactory test result may be other documents (in addition to orders imposing disciplinary sanctions on the employee), which we will discuss below.

Is it possible to fire someone for failure to complete the probationary period if there is a statement of resignation at their own request?

Yes, you can. But only if you promptly notified the employee of your dismissal and the date of dismissal on your initiative is earlier or coincides with the date of dismissal in the resignation letter of your own free will. Such conclusions follow from Parts 1, 4 of Art. 71 Labor Code of the Russian Federation.

At the same time, you can meet the employee halfway and fire him at his own request. For example, if the date of dismissal in the application at one’s own request and the date of dismissal for failure to complete the probationary period coincide, you can choose a more favorable scenario for the employee.

Who and how to notify about the dismissal of an employee due to failure to complete the probationary period

Only the employee himself must be notified of the dismissal of an employee due to an unsatisfactory test result (Part 1 of Article 71 of the Labor Code of the Russian Federation). There is no need to notify the trade union and take its opinion into account due to Part 2 of Art. 71 Labor Code of the Russian Federation. Notification of other bodies (organizations) is also not provided for by law.

Warn the employee in writing at least three calendar days before the end of the probationary period (Part 1 of Article 71 of the Labor Code of the Russian Federation). We recommend that this period be counted from the next day after the employee receives the notice, otherwise there is a risk that the dismissal will be declared illegal.

Let us also recall that when determining the end date of the probationary period, it is not necessary to include periods when the employee was actually absent from work. For example, such periods include sick leave and vacation (Part 7 of Article 70 of the Labor Code of the Russian Federation).

If you have the opportunity, notify the employee with a “spare”, so you will avoid claims related to the correct calculation of deadlines.

How to write a notice to an employee of dismissal due to failure to complete the probationary period

The form of notification is arbitrary, since there is no normatively approved one. But in the notification, be sure to indicate the reasons why you came to the decision that the employee did not pass the test (Part 1, Article 71 of the Labor Code of the Russian Federation). If the employee appeals the dismissal, the reasons specified in the notice, as well as the documents proving them, will be carefully studied during the trial.

Also in the notice you can invite the employee to submit documents confirming the ban on his dismissal on your initiative.

An example of the wording of a notice of dismissal due to an unsatisfactory test result

We inform you that the employment contract dated 06/06/2018 N 07/18-td will be terminated with you on 08/13/2018 in accordance with Part 1 of Art. 71 of the Labor Code of the Russian Federation due to an unsatisfactory test result.

The test results were considered unsatisfactory for the following reasons:

due to systematic delays, you were given a disciplinary sanction in the form of a reprimand (order dated July 2, 2018 N 98-k);
You did not fulfill the work plan for the period from 07/16/2018 to 07/20/2018, which you were familiarized with and signed on 07/13/2018. Namely, they violated the rules for drawing up and agreeing on an agreement with Delo LLC, which led to a delay in delivery of products;

About the existence of prohibitions provided for by law on your dismissal under Part 1 of Art. 71 of the Labor Code of the Russian Federation, please inform in writing and submit supporting documents to the HR department of Vesta LLC, 4th floor, room. 204.

It is advisable to include in the notification a special column for the employee to sign that he has read it and make the notification in two copies: one for the employee, and the second with the employee’s signature indicating receipt of a copy of the notification for you. If the employee refuses to sign to read the notice or to pick up his copy, draw up a statement about this in the presence of at least two witnesses and additionally send him a notice by mail. This will allow, if necessary, to confirm compliance with the requirements of Part 1 of Art. 71 Labor Code of the Russian Federation.

How to issue an order to dismiss an employee due to failure to complete the probationary period

As a rule, order form N T-8 is used to formalize dismissal. But you can also use your own order form.

When issuing a dismissal order using the unified form N T-8, you can use the Instructions for the use and completion of forms of primary accounting documentation for recording labor and its payment (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1).

In the order, indicate the date of dismissal due to an unsatisfactory test result, which should not be later than the last day of the employee’s probationary period, which follows from Part 3 of Art. 71 Labor Code of the Russian Federation.

In the line “Grounds for termination (termination) of the employment contract (dismissal)” of the order, correctly reflect the wording of the grounds for dismissal in accordance with Part 1 of Art. 71 of the Labor Code of the Russian Federation, which follows from clause 4, part 1, art. 77 Labor Code of the Russian Federation.

Example wording

Unsatisfactory test result, part one of Article 71 of the Labor Code of the Russian Federation.

In the line “Grounds (document, number, date)” indicate the details of the documents on the basis of which you are issuing the dismissal order. First of all, indicate the clause of the employment contract (with its details) that establishes the employment test, as well as the details of the employee’s notice of dismissal. You can also list other documents that confirm that the employee did not cope with the job during the probationary period.

Introduce the order to the employee against his signature. If this is impossible to do or the employee refuses to familiarize himself with the document, an appropriate entry must be made on the order (instruction) (Part 2 of Article 84.1 of the Labor Code of the Russian Federation).

Please keep the above in mind if termination order form