Can they be fired during the probationary period?
Often, when hiring a new employee, the terms of the contract specify a period during which his professional qualities can be identified and assessed.
This period of time helps the parties understand the feasibility of further relationships. The probationary period may vary in length depending on the position held. A probationary period is not provided for:
- pregnant women;
- women raising children under 1.5 years of age;
- persons under 18 years of age;
- graduates of educational institutions.
Employees under fixed-term contracts with a duration of no more than 2 months, as well as persons hired by transfer, and other citizens do not fall into this category (Article 70 of the Labor Code of the Russian Federation).
NOTE! The employer has the right not to require confirmation of the status of the persons listed above. Therefore, the employees themselves must present documents confirming this situation.
A probationary period is established only when hiring a new person. If there is a need to transfer an already working employee to another position, a probationary period is not provided.
The duration of the probationary period and other conditions should be specified in the employment contract, and also reflected in the order when hiring. Further changes to these conditions are permitted only by agreement of the parties.
For most employees, the duration of the probationary period is 3 months; at its discretion, the employer may limit it to a shorter period. For applicants for management positions, including chief accountants, the probationary period can be extended to 6 months. If the contract is concluded for a period of 2 to 6 months, the trial period lasts up to 2 weeks.
The reasons for dismissal during a probationary period may be the same as for termination of a contract in other situations. Moreover, in case of unsatisfactory performance of the hired employee, the employer has the right not to pay severance pay.
Find out about other dismissal options from the material “How to properly arrange leave followed by dismissal?”
For more information on how to make the final payment upon dismissal, see the material “Calculation of compensation for unused vacation under the Labor Code of the Russian Federation” .
Not only dismissal during a probationary period, but also dismissal of a missing employee has important features. And ConsultantPlus experts talk about them in detail. Get free demo access to K+ and go to the Ready Solution to find out all the details of this procedure.
"Vacation" compensation upon dismissal during the probationary period
The Labor Code of the Russian Federation guarantees all resigning (and dismissed) employees payment of compensation for unused vacations. This guarantee also applies to those who leave before the end of the probationary period, including part-time workers. Compensation is calculated according to general rules and does not depend on the reason for dismissal.
When the year is not fully worked out, the calculation of vacation days is made in proportion to the months worked (clause of the Rules on vacations, approved by the People's Commissariat of Labor of the USSR on April 30, 1930 No. 169, letter of Rostrud dated July 2, 2009 No. 1917-6-1). So, with a standard vacation duration of 28 days per year, for each month of work (full), employees are entitled to 2.33 vacation days (28 days / 12 months).
When calculating the period of work that gives the right to vacation compensation, the time actually worked by the employee is taken into account, and if at least half of it is worked in a month, this month is counted as a full month, and if less is worked, such a month is not taken into account. For example, if you worked for 1 month and 12 days, the employer compensates for 1 month's vacation, but if you worked, for example, 1 month and 16 days, 2 months of vacation are subject to payment. Accordingly, if an employee worked less than half a month (15 calendar days) during the probationary period, he will not receive compensation for unused vacation.
How to dismiss an employee during the probationary period and after it at the initiative of the employer?
Hiring an employee with a mandatory probationary period is accompanied not only by a record of this condition in the employment contract. It is necessary to draw up a list of requirements and tasks, the fulfillment of which is mandatory for further enrollment in the staff. Successful completion of the probationary period includes, among other things, the solution of all tasks assigned to the employee.
If an agreement was initially concluded with the employee, which does not stipulate the existence of a probationary period or there is no separate written agreement on this condition, termination of the agreement as dismissal during the probationary period can be easily contested.
Dismissal of an employee during a probationary period, committed at the initiative of the employer, must be accompanied by a warning to the employee about the upcoming fact 3 days in advance (Article 71 of the Labor Code of the Russian Federation). To do this, the employee is given a written notice containing the reasons for dismissal and the date of termination of the contract.
Determining the timing of the test has its own characteristics. This period is set in calendar days, including weekends and holidays. However, the absence of an employee from the workplace due to other situations, including illness and unknown reasons, is not included in the probationary period.
If the end of the probationary period falls on a non-working day, then the last day of performance of official duties in this status is considered to be the previous working day. That is, if the employer nevertheless decides to dismiss the employee during the probationary period, then the notice will need to be given in advance.
As soon as the probationary period comes to an end, the employee is considered accepted for the position, unless otherwise specified in the employment contract. The simplified dismissal procedure available to employers during a probationary period is no longer valid, and the employee is subject to the rules in force for ordinary employment.
Let's consider whether they can be fired if the employee fails to cope with the assigned obligations and the probationary period has not yet ended.
Features of the dismissal procedure during the probationary period
To prevent litigation, it is important for the HR department, lawyers and company management to comply with all required formalities when hiring with probation and subsequent dismissal.
The table below contains the main points that need to be taken into account so that when dismissing at the initiative of the enterprise, there are no claims on the part of the dismissed person regarding any issues or procedures.
| what needs to be completed and what must be presented to the employee against signature when applying for a job before starting work | what will be needed when dismissing a person undergoing testing |
| terms of the employment contract, including test clauses | keep a test log recording any violations of a disciplinary or official nature, collect complaints, memos, draw up reports |
| job responsibilities | reasoned notification of a negative test evaluation |
| work schedule | Written notice of dismissal indicating the reasons no later than 3 days before it |
| wage regulations | dismissal order citing Article 71 |
| collective agreement if available | Calculate on the last day of work, including payment of compensation for unused vacation if worked for more than ½ month |
| safety instructions | issue a work book on the last working day with a notice of dismissal under Article 71 of the Labor Code of the Russian Federation |
| other mandatory instructions, internal local documents directly affecting his interests, rights and obligations | issue a certificate of earnings to be provided at a new place of work for the calculation of temporary disability benefits in the future |
Dismissal of an employee for failing to complete the probationary period
The employer has the right to terminate the contract with an employee who has failed to cope with his duties during the probationary period and has also shown himself to be unable to perform further work.
Dismissal during the probationary period can be carried out before the end of this period. The employer can terminate the contract with a new candidate at the very beginning of his work. However, the fact of non-compliance with the position held by the employee will have to be confirmed.
A selection of court decisions on confirmation by the employer of an unsatisfactory test result upon dismissal is given in the ConsultantPlus system. You can get a free trial and see the possible risks.
Before dismissing an employee who has not completed the probationary period , he should be given a notice of dismissal. To do this, the employer issues a notice of the upcoming termination of the employment contract. It must indicate the reasons why the employee was found to have failed the test.
A sample of such a notification was developed by ConsultantPlus experts. Get free trial access to the system and see how to prepare such a document.
The employee must be notified 3 days before the order is issued. This period, as well as the basis for terminating an employment contract with an employee who has not passed the test, is valid only during the probationary period. After this period, if management does not take any action towards the hired employee, it will no longer be possible to dismiss him under the same conditions.
The following periods do not apply to the probationary period:
- vacation (including at your own expense, educational);
- periods of incapacity;
- periods of downtime in production if the employee is absent at this time with the knowledge of management;
- suspension from work;
- performance of state or public duties;
- absence from work for unknown reasons.
You can read more about registering absenteeism from work in the article “How to properly register absenteeism for an employee under the Labor Code of the Russian Federation?”
Employee business trips are included in the probationary period. Moreover, based on the results of completing travel assignments, one can judge the employee’s suitability for the position held.
During the entire period of the employee’s probationary period, the employer will need to record the facts of completion or non-fulfillment of tasks, confirming everything with documents. If conflict situations arise, the employer, during dismissal during the probationary period, can, with the help of such documents, provide irrefutable arguments in favor of the employee’s incompetence.
Evidence of unsuccessful completion of the probationary period may include information from the following sources:
- reports of unsatisfactory product quality;
- memos and reports from immediate superiors and other employees about the unsatisfactory quality of work of the tested employee;
- minutes of the meeting of the commission to discuss the results of the probationary period;
- employee reports on the results of his activities.
If during the probationary period disciplinary measures were taken against the employee, then these facts can also serve as evidence of his inadequacy for the position held.
In addition, the tested employee must be familiarized with the internal regulations, job descriptions and other local regulations against receipt.
More detailed information about the responsibilities of HR employees at an enterprise can be found in the material “HR records management from scratch - step-by-step instructions.”
Results
If an employee has not completed the probationary period, every employer should know how to fire him 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. However, the amount of payments may be less. The employee also has the right to quit if the new place and working conditions are not suitable for him, without undergoing mandatory work for a 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 on a general basis.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
The legislative framework
The duration of the probationary period is regulated by law and is:
2 weeks for employees with whom a fixed-term employment contract has been signed for a period expiring no earlier than in six months;- no more than 3 months for employees hired under the general procedure;
- up to six months for persons applying for leadership positions.
The article on dismissal of one's own free will during a probationary period in the Labor Code of the Russian Federation is numbered 71. Moreover, in accordance with Part 4 of Article 71 of the Labor Code, the employee is obliged to notify his superiors in writing about his resignation in advance. Many people are interested in the question: is the probationary period 3 calendar or working days? Let's find out below.
The Rostrud Letter numbered 1551-6 states that you can notify the employer of the termination of the employment relationship in any convenient way - for example, by handing in a letter of resignation in person, or by sending it by registered mail.
In addition, this letter separately stipulates the dismissal of an employee during sick leave or vacation - the procedure can be carried out at this time only if the initiative comes from the employee.
In the application, the employee must indicate the desired date of dismissal and be sure to sign. The employee stops performing work duties within the period specified in the application - this right is regulated by part 5 of article number 80 of the Labor Code.
On the day of dismissal, an entry about the dismissal is made in the employee’s work book, and the book itself is issued to the employee, in accordance with Article 77 of the Labor Code. Full payment to the employee is also made on the last day of his work.
Is it possible to quit during a probationary period in one day?
IMPORTANT! Yes, but only if the employee has not yet started performing his job duties, but expresses a desire to resign. In this case, the concluded contract is canceled one day. In this case, no entries will be made in the work book, and the cancellation of the contract is confirmed by the relevant Management Order, in accordance with the Letter of Rostrud No. 5203-6-0 dated February 19, 2007.
How to resign during the probationary period of your own free will, read below.
