Probationary period when hiring. What is included in the concept of “probationary period for employment”? What deadline can be set

In this article we will look at an employment contract without a probationary period. Let's figure out who should not be given a probationary period. Let's learn about common mistakes.

When both parties have agreed that a preliminary test will be scheduled, they enter into an agreement that includes information:

• about the first day and the end of the probationary period;

• about the responsibilities of a new team member;

• about operating mode, etc.

The conditions of the probationary period must not differ from the working conditions of full-time employees.

Even if the employee begins to work before the conclusion with him labor contract, the fact that he has been accepted into the team must be recorded in a written agreement. If the employment contract is signed and it does not indicate information about the tests, the new employee is considered employed without the condition of a suitability test.

Labor legislation traces the terms of the agreement on the appointment of a test and the period during which the employer evaluates the abilities and potential of the employee, however, the criteria for assessing the results of the test are not prescribed in the Labor Code.

The maximum period for conducting a candidate verification is 3 months. In the case of management positions and chief accountants, the testing period may extend up to six months. If the contract involves cooperation lasting from 2 to 6 months, the probationary period should not last longer than 2 weeks. The fact of a part-time job does not play any role - the part-time worker is tested under general conditions.

Before giving an applicant for a position an agreement to undergo checks for signature, you should familiarize him with the work rules, job responsibilities, and give him a copy of the job descriptions. Employers are also advised to approve in advance Regulations on the procedure for passing tests. This is due to the fact that scrupulous employers who screen out the majority of candidates and carefully check them to meet expectations may find themselves in a situation where a potential employee who did not get the position goes to court to protect his rights. In this case, a documented Regulation on tests and selection criteria will help you win your case.

Large companies in Lately started processing individual test instructions– with this approach, it becomes possible to clearly define the work criteria for any position. A beginner knows exactly what to do to get workplace, and at the end of the check, he sees for himself whether he has the ability to continue cooperation with the employer or not. Often a mentor is assigned to a candidate, who points out shortcomings in his work and evaluates his potential.

Who should not be given a probationary period?

Drivers

Concluding a probationary agreement with drivers plays a role important role for the employer, because he must be sure that he has sufficiently good driving skills. The safety of other employees and the vehicle driver himself, as well as the integrity of the company’s transport, depends on this. If the organization does not provide for the conclusion of agreements on collective or individual responsibility, the role of checking the professional qualities of a candidate for a position becomes twice as important.

However, the law provides for two cases when the establishment of a probationary period is not provided:

• It is expected to cooperate with the driver for no more than 2 months;
• the driver is looking for a job for the first time after completing specialized education in a state-accredited program (there is a caveat - no more than 1 year has passed since the date of receipt of the education document).

Workers

Tests for workers whose work will be associated with continuous physical activity are carried out to determine whether they have the necessary knowledge about working in special conditions, especially about occupational safety. The law prohibits the inclusion of probationary conditions and obliges the employer to hire a citizen without checks if:

• a potential worker wants to get a job under an apprenticeship contract after graduating from an educational institution;

• the candidate is looking for a job in his specialty for the first time.

Chief accountants

Chief Accountant is a leadership position that requires high level responsibility and competence. Candidate for this position must understand the laws and have full professional skills; a probationary period is established to test the person’s suitability. Hiring an unverified person for the position of chief accountant is risky.

But even in a situation with such responsible work, aptitude testing is not carried out for:

• pregnant women and parents of a child under one and a half years old (including single parents);

• an accountant who is employed on the basis of a transfer from another company by agreement of the management of both enterprises;

• candidates who received a place on a competitive basis in accordance with the Labor Code of the Russian Federation.

Civil servants

Probation cannot be installed for:

• candidates who have job security guarantees by law;

• appointed to a position by transfer due to the liquidation of a government agency or reduction in the number of employees;

• received average/ higher education And job seekers based on a student contract.

Police officers

Typically, a future internal affairs officer is checked for suitability for the position within 2-6 months; during the period of verification, a police officer, for example, is a trainee without a rank.

It is prohibited to establish a probationary period in relation to:

• persons who came to the Fed. executive authority for the purpose of obtaining higher education;

• citizens who successfully passed the competitive selection;

• employee intending to occupy a senior management position.

Probationary period for young specialists

Article 70 of the Labor Code provides for the refusal to assign a probationary period for young specialists who have just graduated educational institution and received specialized education in accredited programs if they are trying to find employment in their specialty for the first time. But if a young specialist has worked in the position he is currently trying to occupy, the employer has the right to set a time for testing his professional suitability.

There is also a condition - no more than 1 year must pass from the date of delivery of the diploma to the candidate for the job, otherwise the employer can also assign a probationary period. Accordingly, the dismissal of such an employee due to unsatisfactory inspection is illegal.

Employment contract (without probationary period)

EMPLOYMENT CONTRACT

Limited Liability Company “Polyot” represented by General Director Petrova M.V., acting on the basis of the Charter, hereinafter referred to as “Employer”, on the one hand, and Citizen of the Russian Federation Ivanov Sergey Vladimirovich (passport 40 99 682380, issued on August 25, 1800 by the 42nd police department of Rostov), ​​hereinafter referred to as “Employee” ”, on the other hand, have entered into an agreement as follows:

1. The Subject of the Agreement

1.1. The Employer hires an Employee for the position of head of the legal department.

1.2. Alphabet LLC is the permanent and main place of work of the Employee.

2. Rights and Obligations of the parties

2.1. Job responsibilities of the Employee:

(The main characteristics of the work and the requirements for the level of their implementation in terms of volume of work, quality of service, level of fulfillment of norms and standardized tasks, compliance with labor protection rules, performance of related work in order to ensure interchangeability are indicated.

When combining professions (works) or performing related operations, a list of these works and their volumes and other obligations is given.)

2.2. The employee is obliged:

2.2.1. perform job duties in accordance with labor legislation this agreement and the job descriptions approved by the Employer;

2.2.2. obey internal labor regulations, observe labor discipline;

2.2.3. treat the Employer's property with care.

2.3. The employer is obliged:

2.3.1. organize the Employee’s work;

2.3.2. create conditions for safe and efficient work;

2.3.3. equip the workplace in accordance with labor protection and safety regulations;

2.3.4. pay wages stipulated by the contract on time.

3. Working hours

3.1. The Employee has a five-day work week with two days off.

3.2. The duration of the Employee’s working hours under this agreement is 40 (forty) hours per week.

3.3. The daily working hours cannot exceed 8 (eight) hours.

4. Rest time

4.1. The employee is given a daily break for rest and food lasting 1 (one) hour. A break is provided four hours after the start of work.

4.2. The employee may use the break at his own discretion. During this time, he is given the right to leave the place of work.

4.3. The duration of weekly uninterrupted rest must be at least forty-two hours.

4.4. Weekends are Saturday and Sunday.

4.5. The day before holidays The Employee's work hours are reduced by one hour.

4.6. The Employee’s work on a day off is compensated by providing another day of rest or, by agreement of the parties, in cash - in double size. The Employee's work on a holiday is paid double.

4.7. The employee is provided annual leave V summer time lasting 24 (twenty-four) working days with retention of place of work (position) and average earnings.

4.8. Upon a motivated application from an employee, he may be provided with additional leave in accordance with the norms of the labor legislation of the Russian Federation.

5. Salary

5.1. The Employee's salary cannot be less than 1 (one) minimum size wages established by the current legislation of the Russian Federation.

5.2. The Employee is remunerated on the basis of his official salary. The amount of the official salary is established by the Administration of the Employer.

5.3. Salaries are paid twice a month.

5.4. Wages for the entire vacation period are paid no later than 1 (one) day before the start of the vacation.

5.5. Pay wages The employee is given at the place where he performs the work, unless otherwise provided by agreement of the parties.

5.6. Failure to perform or improper execution Employee of his own job responsibilities through no fault of his own does not entail a reduction in the established monthly salary. Guilty failure or improper performance by the Employee of his official duties entails remuneration in a reduced amount established by the Employer.

5.7. When an employee is dismissed, payment of all amounts due to him from the employer's enterprise is made on the day of dismissal.

6. Duration of the contract

6.1. The contract is concluded for an indefinite period and can be terminated on the grounds provided for by the current legislation of the Russian Federation.

7. Other conditions

7.1. An employee is hired without a probationary period.

7.2. For exemplary performance of job duties, long-term and impeccable work, innovation in work and other achievements in work, the following incentives are applied:

1) declaration of gratitude;

2) issuance of a bonus;

3) rewarding with a valuable gift;

4) awarding a certificate of honor.

5) other incentives provided for by the labor legislation of the Russian Federation.

7.3. Relations between the Employee and the Employer, not specified in this agreement, are governed by the norms of labor legislation and social security legislation in force in the territory of the Russian Federation.

7.4. This agreement is drawn up in Russian, in two copies having equal legal force, one for each of the parties.

8. Details and signatures of the parties

Employer: Limited Liability Company “Alfabet”

198198, Moscow, st. Blagodatnaya, 15

Employee: Volkov Sergey Petrovich

192267, Moscow, st. Zoologicheskaya, 13/3, apt. 5

Employer:
___________________

Worker:
____________________

The probationary period is established for newly hired employees for a period of up to 3 months (in some cases it can be increased to 6 months). According to the Labor Code, the employer is not entitled to reduce wages during the probationary period.

 

The nuances of preliminary testing of workers are indicated in Art. 70 Labor Code of the Russian Federation. According to the Law, any employer reserves the right to set a certain period during which the employee has the opportunity to demonstrate his positive traits V professional field and then find a permanent job.

Probationary period when hiring: features and differences

The essence of the trial period is that during this time the employer can learn about the positive and negative professional qualities of the new employee. If an agreement is concluded between the parties in which there is no note about testing his knowledge and skills over a certain period of time, then the employee is automatically considered accepted without testing.

When there is no agreement between the employer and his subordinate, but the latter has already started work, a test can only be carried out if an agreement was concluded before the start of work.

acc. from Art. 70 of the Labor Code of the Russian Federation, a probationary period is not established in relation to the following persons:

• For those who came to work on a competitive basis.
• For minors, pregnant women and women with children under 2 years of age.
• For those who received higher or secondary vocational education in state-accredited educational programs less than a year ago in the same specialty in which they are employed.
• For persons applying for an elected paid position (who won according to the voting results).
• When transferring from one place of work to another, if this was agreed upon by both managers.
• If the employment contract is concluded for a period not exceeding two months.
• When concluding a student agreement with an organization: upon expiration of its validity, only registration without preliminary tests is possible.

How does the employment process with a preliminary test work:

• An employment order is issued signed by the manager.
• New employee reads the order and puts his signature.
• An entry is made in work book on concluding an employment contract indicating the order number and the corresponding article of the Labor Code of the Russian Federation.
• All data is placed in the trainee’s card or personal file.

Salary during the trial period

The hired employee is subject to all internal regulations and acts, as well as the provisions of labor legislation - i.e. a new person in the team has the same rights as everyone else, so a reduction in wages in this case illegal.

The employer can only indicate a lower salary in employment contract, and if the subordinate’s professional skills suit him, an additional agreement is concluded with the condition of increasing the basic rate.

Duration of probationary period upon hiring

The lower limits are not limited by law, but the maximum probationary period when hiring cannot exceed three months for ordinary employees, and six for management personnel and their deputies in organizations and branches; accountants and their substitutes.

If the employment contract is concluded for less than six months, the probationary period cannot last more than two weeks. Any extensions in all of the above cases are prohibited, and when the time expires, but the employee continues labor activity- it is considered to have passed the test, and the contract can be terminated only on a general basis.

During the trial period, sick leave, absenteeism and other circumstances due to which the employee was unable to work or was actually absent from the workplace are not counted.

Dismissal at the initiative of the employer

If during the inspection period an employee did not comply with labor discipline, skipped work or behaved incorrectly towards the team, the manager has the right to notify him of the upcoming dismissal 3 days before dismissal. writing. The work book will indicate “at the initiative of the employer” as the reason.

Features of dismissal of an employee during a probationary period

If desired, any employee undergoing testing must submit a resignation letter to the manager three days before the expected dismissal or the end of the period, but is not required to explain the reasons. In the future, the corresponding column will indicate “at the initiative of the employee.”

When an employer does not have the right to fire an employee during the probationary period

There are several reasons why a manager cannot fire a subject subordinate:

• Sick leave.
• Personal motives.

An exception is the suspension of a company's activities when a corresponding order is issued.

The process of dismissing an employee who fails the test:

• The employer prepares evidence confirming the employee’s incompetence: memos, information about absenteeism, explanatory or previously drawn up complaints.
• A written notice of the desire to terminate the contract is issued. It states the reasons and also records it in the log book.
• A corresponding order is drawn up, which is signed by the person being dismissed, and then the document is registered in the journal.

If you are fired illegally

There are often cases when a manager forces you to write a resignation letter. at will, but the employee himself does not want to do this. If such a situation arises, you must contact the labor inspectorate or prosecutor's office with a written complaint. Despite the fact that the employee is on probation, he has equal rights as long-serving colleagues, and this situation is no exception.

Employee risks during the probationary period

Of course, employees signed up for a trial period have certain risks, the main one of which is non-renewal of the contract. More details can be found in the video:

Legislation in the field labor relations provides for the need to conclude between the employee and the employer either an employment contract or a civil law agreement. Only if one of the specified documents is available, a person is authorized to begin work. By decision of the management of the enterprise, a person hired may be assigned. About what it is, why it is required, who should not be given a probationary period? and other intricacies of legislation we will discuss in this article.

Why is a probationary period needed?

So, probationary period is a period of time set by the employer for a newly hired employee to verify his suitability for the position held. For example, it is advisable to establish a probationary period in the case of hiring persons who have a different education than that required for a specific position, or who do not have work experience in a specific field. At the same time, such a trial period is necessary not only for the employer, but also for the employee himself, in order to draw conclusions about the suitability of the chosen position, about how suitable the organization and the team are for him.

Quite often, a probationary period is established for employees who fully meet all the requirements established for a particular position. Employers do this in order to verify the accuracy of the information specified by the person in.

If, during the probationary period, the employer concludes that the hired person is unable to cope with the duties assigned to his position, then the employment contract concluded with him may be terminated even before the final completion of the probationary period. In this case, the employer must warn the employee 3 days before dismissal the decision taken in writing indicating the reason for dismissal.

In order to avoid the employee having grounds to appeal to the labor inspectorate or the courts, he should be familiarized with his job responsibilities against signature. They can be recorded in job description, as well as other local regulations. Each fact of violation of official duties must also be recorded in writing.

What does the law say about probation?

Legislative provisions regarding the probationary period contain Article 70 of the Labor Code of the Russian Federation "Job Test". This article clearly defines the optional nature of the period for probation, its deadlines, as well as the list of persons for whom a probationary period is not established.

Article 70 of the Labor Code of the Russian Federation - Test for employment

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

The absence of a probationary clause in the employment contract means that the employee was hired without a trial. In the event that an employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), the probationary clause can be included in the employment contract only if the parties formalized it in the form of a separate agreement before starting work.

During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing standards labor law, collective agreement, agreements, local regulations.

A hiring test is not established for:

Persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulations legal acts, containing labor law norms;
pregnant women and women with children under the age of one and a half years;
persons under the age of eighteen;
persons who have received secondary vocational education or higher education in state-accredited educational programs and are entering work for the first time in the acquired specialty within one year from the date of receipt vocational education appropriate level;
persons elected to elective positions for paid work;
persons invited to work by way of transfer from another employer as agreed between employers;
persons concluding an employment contract for a period of up to two months;
other persons in cases provided for by this Code, other federal laws, and a collective agreement.

The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established. federal law.

When concluding an employment contract for a period of two to six months, the probationary 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.

So, duration of probation cannot exceed 3 months. If we are talking about temporary work that lasts 2-6 months, then the probationary period is either not established at all, or, in extreme cases, is provided for a maximum of 2 weeks.

For certain positions, a six-month probationary period may be provided. These include positions of heads of enterprises and organizations, their deputies, chief accountants and their deputies, as well as heads of structural divisions, branches and departments.

Specified officials must pass the six-month test unless they are subject to certain federal regulations that waive the employment test.

At the same time, the duration of the probationary period does not include days when the employee was on sick leave or on leave. So, if an employee was given a probationary period from March 1 to March 31, but went on sick leave from March 6 to March 10, his probation will last until April 5.

About those who cannot be given a probationary period

The mentioned article of the Labor Code provides for a list of citizens for whom it is prohibited to establish an employment test. This list includes:

Pregnant women;
persons employed before reaching 18 years of age;
women with children under 1.5 years of age;
persons holding elected positions;
persons hired for temporary work for a period of no more than 2 months;
persons who, by agreement, find employment by transfer from another enterprise;
persons finding employment in their specialty for the first time after completing their studies at a state-accredited educational institution;
employees hired based on the results of a competition.

Also, a probationary period is not established when hiring for other categories of workers, if this is provided for by local regulations of the enterprise, primarily by a collective agreement.

How is a probationary period arranged?

As already noted, the need to undergo a probationary period, as well as its duration in each specific case, are determined in the employment contract, which the employer signs with the employee upon employment. If such information is not contained in the employment contract, it is considered that the person is hired without a test.

It happens that it is issued retroactively, when the employee has already begun to perform his job duties. In this case, the test is drawn up in the form of an additional agreement to the contract, which must be done before starting work. As noted in Article 67 of the Labor Code, if an employee starts work without signing any documents, he is considered accepted.

What is the salary during the probationary period?

Labor legislation establishes the right of an employee on a probationary period to receive all benefits, as well as to enjoy the rights provided for persons in their main job. This means that his salary should not differ from what he would receive if he were a main employee. This also includes bonuses and other types of financial incentives installed at the enterprise. But, as a rule, everyone who undergoes a probationary period receives an order of magnitude less salary. This is primarily due to the fact that the employee becomes overwhelmed with work and cannot work at full capacity.

But a similar legislative norm also applies to, since an employee on a probationary period is considered a full member of the workforce.

Quite often, when hiring a person, employers use a probationary period as a test of a person. Even with the apparent ideality of an employee, it is still necessary to evaluate his ability to future work. This is precisely why the employee is given the opportunity to assign a probationary period. This right granted to them has many nuances in application, which are worth considering in more detail.

What is a “probationary period”? Why is it installed?

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

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

But in order to avoid unfavorable consequences for himself, the employer must be able to competently draw up and formalize the probationary period itself.

Basic ones when hiring or dismissing an employee.

About payment for maternity leave: when they go on leave, for how long they are paid and the amount of benefits.

Who can be given a probationary period?

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

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

1. Persons who are elected through a competition (must be held in the manner established by the Labor Code of the Russian Federation and other acts) to fill the corresponding position;
2. Women during pregnancy, as well as those women who have children under 1.5 years of age;
3. Citizens who are under 18 years of age;
4. Citizens who have either secondary vocational or higher education in those educational programs that have state accreditation. Such citizens must be hired for the first time in their profession within a year from the day they received the appropriate education;
5. Citizens who are elected to an elective position to perform paid activities;
6. Citizens who were invited to work by transfer from another employer as agreed between the employers;
7. Citizens whose employment contract has a duration of two months;
8. Other citizens, if this is provided for by the Labor Code of the Russian Federation, other federal laws or a collective agreement.

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

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

Establishing a probationary period: what needs to be done?

So, if the applicant is a person for whom a probationary period can be established, then the employment contract with him includes this condition. Most employers limit themselves to this point only. But if this is done, the probationary period will be useless, since it will be almost impossible to dismiss an employee as someone who has not passed the test. But for an employee, such registration for a job for a probationary period will also be beneficial in that he will be able to use this record if, say, he finds a more profitable job and wants to quit quickly. After all, his probationary period will not be two weeks, but just three days (see Article 71 of the Labor Code of the Russian Federation).

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

What documents does the employer need to prepare?

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

REMEMBER: For most applicants for the position, the maximum possible length of probation is three months. The employer also has the right to set a period shorter than this. But if the employment contract and the order itself stipulate a trial period of two months, then it will no longer be possible to extend it to three months without the consent of the employee himself. This is because the test clause refers to essential conditions an employment contract, which can only be changed by agreement of the parties.

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

During the entire probationary period, the employer must strictly monitor the employee’s performance of these tasks. If they are performed poorly or untimely, then these facts must be recorded (for example, in reports or memos). It is worth clearly indicating what task was given and what exactly was not done, etc. It would not be amiss to include the task itself.

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

Proper design of the test is quite complex and has many nuances. Every action must be recorded in writing. This will make it possible in the future to have evidence that the employee did not pass the test, which means he can be fired.

Duration and extension of the probationary period

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

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

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

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

Dismissal of someone who has not passed the probationary period: or how not to miss the moment

If the test reveals that the employee is not suitable, the employer has the right to dismiss him.

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

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

This means that the employer must be good at keeping track of deadlines. If a decision is made to dismiss after the probationary period, notice of this must be given to the employee no later than 4 working days in advance.

Such notice must contain the following information:

• The reasons why an employee is considered to have failed the test;
• Documents confirming them;
• Date of dismissal.

This document must be handed over to the employee against signature. It should also indicate the date of delivery. It is worth saying that it is better not just to list the reasons for dismissal, but also to make a link to the documents that confirm them. It is best to make copies of them and attach them to this notice. Then the employee will understand exactly what violations were committed during the test period.

Is the employee unwilling to accept the notice? Here you should do the following. The employer must draw up a report about this. Some of the organization's employees must be present during the drafting process. They, as witnesses, will certify with their signatures the fact that the employee was given a notice, and will also confirm its refusal to accept it. A copy of the notice should be sent to the employee’s home by registered mail (this is due to the presence of a receipt receipt). In this case, deadlines must also be observed. Such a letter must be sent to the post office no later than three days before the end of the probationary period. The date of such transfer is determined by the postmark on the receipt.

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

If the test is passed...

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

Payment during the probationary period: how to pay?

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

But there are ways to establish reduced wages. An example would be salary indexation after the expiration of the probationary period, or transfer of an employee to another position in the staffing table.

Penalties during the probationary period

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

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

In this article we will remind employers of the procedure for establishing a probationary period. Using examples from judicial practice Let's pay attention to the mistakes that employers make when dismissing an employee who fails the test.

Who is not subject to probation?

Not all potential employees can be given a probationary period. If an employer includes a condition on probation in an employment contract with a person who is prohibited from establishing a trial, this condition will not be valid (Part 2 of Article 9 of the Labor Code of the Russian Federation).

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

• pregnant women and women with children under the age of one and a half years;
• under the age of 18;
• those who have received secondary vocational education or higher education in state-accredited educational programs and are entering work for the first time in their specialty within one year from the date of receiving vocational education at the appropriate level;
• concluding an employment contract for a period of up to two months;
• invited to work by way of transfer from another employer as agreed between employers;
• those who have successfully completed an apprenticeship - upon concluding an employment contract with the employer, under the agreement with which they underwent training (Article 207 of the Labor Code of the Russian Federation), etc.

If an employer sets a probationary period for any of the listed persons, especially dismisses them as having failed the test, he may be subject to administrative responsibility. An employee who goes to court will be reinstated.

If, before the end of the probationary period, the employer learns that the employee belongs to the category of persons for whom probation is impossible, changes must be made to the employment contract. In this case, it is necessary to conclude an additional agreement to it, which will cancel the test condition. Based on the agreement, an appropriate order should be issued.

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

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

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

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

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

Step 2. On the basis of an employment contract, which contains a provision for establishing a probationary period, the employer issues an order noting that the employee has been hired on a probationary period and indicating the period of such probation.

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

If the employee failed to cope with his labor responsibilities during the probationary period, the employer has the right to dismiss him. The procedure for dismissing an employee who has shown unsatisfactory results is established by 71 of the Labor Code of the Russian Federation.

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

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

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

By the way, sometimes one memo may be enough to fire an employee. There is such a case in judicial practice. The reason for the dismissal was a memo from the employee's immediate supervisor. The document stated that the employee’s quality of work did not correspond to the position he occupied, and that his attitude towards work was lazy and lacking initiative. IN memo contained a proposal to terminate the employment contract with the employee as having failed the hiring test. The dismissal was recognized as lawful (Decision of the Leningrad Regional Court dated December 7, 2011 No. 33-5827/2011).

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

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

Warning

Dear V.V. Smirnov!

In accordance with Art. 71 of the Labor Code of the Russian Federation, we warn you that the employment contract concluded with you is subject to early termination due to the fact that you were found to have failed the test provided for in the employment contract due to inadequacy for the position held and repeated violation labor discipline And internal regulations organizations.

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

We wish you all the best.

General Director Petrov S.S.

(name of the position of the person who signed the document)

personal signature of I.O. Surname

Date 07/18/2017

AWARE OF

Job title personal signature ____________

(indicated by the employee by hand)

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

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

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

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

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

If the trial period was not enough to evaluate the employee's abilities...

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

Rostrud is not against reducing the probationary period if the employee quickly proved himself the best way. Letter No. 1329-6-1 dated May 17, 2011 concluded that, with mutual consent, the parties have the right to enter into an additional agreement to the employment contract to reduce the probationary period. These changes will not contradict labor laws.

Dismissal of a part-time worker

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

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

If an employer can offer a part-time job that he does part-time as his main job, then with the employee’s consent, it is necessary to conclude a new employment contract on new terms or enter into an agreement to change the terms of the employment contract.

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

conclusions

To summarize, let us once again draw attention to the main points that will help the employer avoid legal disputes. Everyone should remember them when establishing a probationary period and dismissing an employee who fails to cope with the test.

1. Not all employees may be subject to a probationary period. Dismissal based on the results of a probationary period of a temporarily disabled employee, a pregnant woman or a woman with a child under three years of age is unlawful;
2. The test is considered established if the corresponding condition is included in the employment contract. The absence of a probationary period clause in the employment contract makes it unlawful to subsequently apply the probationary clause, even if it is enshrined in the collective agreement and other local acts(hiring order, job description, etc.);
3. The test results must be documented;
4. In order to dismiss an employee based on the results of the probationary period, the employer must indicate in writing the reasons why he was found to have failed the test, as well as document this fact;
5. The employee must receive notice no later than three days before dismissal.

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