Almost every employment organization stipulates a mandatory condition for testing the worker in order to check his professionalism; we will consider what a probationary period is below.
The probationary period is a certain time period during which the employer checks the applicant for professional suitability. That is, during this time period the employer will monitor the employee’s actions using various methods. This also applies to the applicant’s behavior in relation to colleagues.
What does a probationary period mean and how long is it?
The probationary period lasts no more than 3 months, it all depends on the type of work, for example, for management positions, the probationary period is no more than 6 months. If during the entire inspection, the employee fully coped with his professional actions, then the probationary period is considered successfully completed. When hiring, the concept of a probationary period is not always mandatory, but it is always specified in the employment contract.
If an employee is allowed to work without drawing up employment contract, then all the conditions for the trial period can be included in the contract only if both parties have drawn it up before starting work as a separate agreement. Thus, concept of probation without signing an employment contract is not established.
The law established certain categories of citizens for whom The probationary period does not apply to:
Persons who were elected as a result competitive program to fill a specific vacancy;
Women who have children under one and a half years old, as well as pregnant women;
Persons who are under 18 years of age;
Citizens who graduated educational institution higher, secondary and primary vocational education, with the obligatory presence of state accreditation, and for the first time entering work in the acquired specialty, but only within 1 year, from the day on which they completed their studies at the educational institution;
Persons who are invited to work as a transfer from another company by mutual agreement of both employers;
Citizens selected for a specific position in paid work;
Persons who have entered into a temporary employment contract for up to 2 months.
If you belong to one of the categories described above, despite this, you were still given a probationary period, its terms are not valid, since employment contracts do not contain conditions that may reduce the level of workers' guarantees or limit rights. If such conditions are contained in the employment contract, then they are not subject to application (Article 9 of the Labor Code of Russia).
Probation should not exceed 3 months, and for management-level positions, their deputies, chief accountants, heads of representative offices or other separate structural divisions of the company - the trial period is 6 months.
The probationary period does not include the temporary period of incapacity for work of the hired worker, as well as other periods when he was not actually at work (Article 70, Part 7 of the Labor Code of Russia).
If the employment contract specifies a longer period of testing, then it is considered completed after a period of 3 months from the moment the work began. work activity. In other words, you cannot fire an employee due to an unsatisfied test result after 4 months from the beginning.
Summarize
The probationary period is a certain period of time when the employer tests the applicant for professionalism and communication skills. During this testing period, the employee must comply with all provisions that are specified in the employment contract and other regulations containing labor law norms, agreements, collective agreements and local regulations.
That is, the employee, during probationary period, is a full-fledged employee of the enterprise who can be fired in case of violation of the legal norms prescribed in the employment contract or code.
During the probation period, the employee has the right to use all the guarantees provided by labor legislation, for example, he can use additional days off in connection with voluntary blood donation, take study leave, go on maternity leave, etc.
If it is customary in an organization to give a bonus to an employee at the end of the probationary period for certain indicators, then the manager is obliged to pay him a bonus. During the probationary period, the employee has the right to resign on his own initiative, notifying his employer 3 days in advance. writing(Article 71, part 4 of the Labor Code of Russia).
Due to dissatisfaction with passing the test (Article 71, part 1 of the Labor Code of Russia), the employer has the right to terminate the employment contract with the employee even before the expiration of the test period.
If the employer does not promptly notify you of the termination of the contract due to an unsatisfactory test result, he risks being subject to administrative responsibility.
We hope you are now more aware of what probation is, its terms and legal provisions.
The probationary period is usually perceived as an annoying necessity attached to employment, and few applicants know that its implementation is regulated by labor legislation. On the contrary, more and more new stereotypes are being created around this period, playing into the hands of employers. Without knowing their rights, workers agree to unfavorable conditions for themselves, and these concessions most often lead to even worse consequences. Maybe it's time to dispel "convenient" myths?
Knowledge of the law does not oblige you to go to court
Most job seekers only brush aside the offer to talk with the employer within the framework of the Labor Code of the Russian Federation.
“Nobody follows it anyway,” some say.
“Litigation is more expensive for yourself,” others confirm.
“Only people with a legal education can understand the law,” agree others.
And they continue to meekly fulfill all the requirements, just to pass the probationary period and get a place. But the results of such employment are usually disappointing: unpaid wages on time, fines (also illegal), overtime, etc.
The reason for the reluctance to defend justice, according to HeadHunter experts, is human inertia: it is simply convenient for people to believe that a different order of things is impossible. But in fact, there are positive dynamics: Lately All more companies they are beginning to lean towards compliance with the Labor Code: they provide full leave, pay sick leave, and most importantly, transfer employees to a “white” salary.
Therefore, the problem now is no longer that people do not want to follow the letter of the law, but that they are too lazy to read this letter and understand the details. Moreover, even those whose direct responsibilities include their compliance are often unaware of the rules and regulations. Employees are indignant that managers, representatives of personnel services and accounting departments cannot correctly calculate “maternity” or vacation money, or register a person temporarily hired or accepted for a probationary period. Moreover, this happens not only in some fly-by-night companies, but also in government organizations.
Therefore, you should not hope that a competent specialist works in your HR department. Take the situation in own hands. Every person should study labor legislation, at least its most basic points, in order to be able to defend their rights. And not necessarily in court. After all, sometimes rules are broken in an organization not so much with malicious intent, but simply because it is convenient for the manager, who does not even suspect that it is illegal. In this case, it is enough to express the essence of your complaint. So why not do this?
Not ready for the test!
It is best to build relationships with your employer within the framework of the labor code from the very beginning - from the probationary period, which is one of the most " problem areas"from the point of view of non-compliance with the law. Let's look at what rights an employee has during this period and how they are most often infringed.
Elena Zagurskaya, HR manager of Ecological Company LLC, a member of the Association of Career Professionals, recalls the main articles of the Labor Code: “Let’s start with the fact that the very fact of establishing a probationary period is not unilaterally assigned by the employer, but is discussed. According to the Labor Code of the Russian Federation, “the condition probation when concluding an employment contract may be provided for by agreement of the parties." In practice, we encounter the fact that the company has already a priori determined the presence or absence of a probationary period, and the employee is forced to accept the conditions or refuse the vacancy.
The duration of this period is also regulated by law. Thus, if an employee is hired under an open-ended employment contract, then the probationary period cannot exceed three months, and for managers, their deputies and chief accountants - six months.
In addition, there are categories of job seekers for whom a probationary period is not established at all. These are employees selected by competition; pregnant women, women with children under 1.5 years of age; persons under 18 years of age; persons invited to work by way of transfer, and some others. Therefore, before agreeing to a probationary period, read Article 70 of the Labor Code of the Russian Federation - perhaps you are on the list of employees to whom they do not have the right to assign it."
However, having received the right to choose, do not rush to refuse the probationary period; do not forget that it is convenient not only for the employer. So, if during this period you want to terminate your employment relationship, you can do this within three days (instead of the two weeks that you would have to work if you were immediately hired).
Test salary
Still, most workers would happily refuse a probationary period, since it is generally accepted that during this period they will earn less.
“Another frequently occurring gross violation of the law is the establishment of a salary during the probationary period, ranging from 80 to 50% of that provided for staffing table. An employee can easily appeal such conditions in court,” reminds Elena Zagurskaya.
Justify reduction wages It is possible when part of the money is paid as a percentage of sales. It turns out that since there are no sales yet, then there is no interest. True, in some companies, understanding this problem, initial stage work sets the salary a little more than the permanent part of the rest of the employees, so that a person can easily adapt and the issue of money would not be too pressing for him. But this is rather the exception than the rule.
More often it happens the other way around. In companies with “gray” salaries, the employer can set his own conditions: for example, register part of the money as a bonus and, accordingly, pay only the basic salary during the probationary period, etc. Unfortunately, applicants most often agree to these conditions. But if you have a choice, then, having understood the policy of this company, you can refuse to cooperate with it.
"Floating" position
Knowing the law will help you protect yourself from another unpleasant, but, unfortunately, quite common situation. Often, in order to save money, employers resort to such tricks. They open a vacancy for a position that, in fact, does not exist. They place an ad, find a suitable person and invite him to come out for a trial period - of course, with a lower salary. And when the three months are up, they simply tell him: “Sorry, you are not suitable for us.” The point of the trick is that no one was going to hire an employee - they just had to find someone who would work diligently for a symbolic salary. And many people use this scheme constantly - as soon as the time comes, they start a new set.
You can protect yourself from such exploitation if you find out in advance the level of staff turnover in the company where you are going to work. True, asking about this directly during an interview is not very effective. Even if the level is high, the HR manager is unlikely to admit it, and the information belongs to the category of internal information: maybe you are a spy from your competitors. Therefore, it makes sense to look at job sites to see how often a given organization recruits specialists for your position. In addition, most people who have at least once fallen for such a bait intuitively “figure out” these companies not only at the interview stage, but even from the advertisement. Signs may be too good conditions at the end of the probationary period, a formal approach to reviewing a resume and conducting an interview, quick decision-making and an offer to start work as soon as possible, noticeable refinement of the scheme, etc.
Those who still fall for the bait of such scammers have no choice but to go to court. On the one hand, it may seem that there is no point in defending the right to work in such a company, but on the other hand, having achieved justice, you will restore your good name and teach a dishonest employer a lesson.
I have the right
But in most cases, we observe a certain middle option, the meaning of which boils down to the fact that although the company needs an employee with a long-term perspective, it still strives to protect itself as much as possible from negative consequences unsuccessful employment. Only for some reason all these precautions are taken at the expense of the candidate.
“We often hear complaints about arbitrariness on the part of employers during the probationary period,” confirms Zagurskaya. “This is due to the fact that employees are not psychologically protected at this time. If the company begins to infringe on their rights, they will most likely look for a new job , than they will defend their right to employment. But in fact, from a legal point of view, a person undergoing the adaptation or testing stage is the most ordinary employee. He is protected by an employment contract and, accordingly, labor legislation, has the same rights as the remaining members of the work team, that is, almost fully have the status of an employee: they can receive bonuses or, on the contrary, be subject to disciplinary sanctions.
In essence, the meaning of the probationary period comes down to the fact that during this period both parties have the opportunity to more easily terminate the relationship: the employee has the right to leave the company within three days, and the employer can fire an unsuitable employee without taking into account the opinion of trade unions and without severance pay, arguing your decision in writing.
The last point here is very important, because many employers are confident that during the probationary period they can terminate the employment contract with the employee at any time, explaining that “the test was not passed.” However, in the absence of documents confirming an unsatisfactory test result (for example, office notes immediate supervisor about a violation by an employee job description or an employment contract), or if such a document is refused, there is a high probability that the employee will be reinstated at work if he files a corresponding claim.”
The probationary period is regulated by Articles 70 and 71 of the Labor Code of the Russian Federation, which describe the basic principles of the employer-employee relationship. Familiarize yourself with them before applying for a job. If something seems unclear to you, look for comments from lawyers on the Internet. You should not agree to unfavorable conditions. Defend your rights to civilized employment.
- Personnel records management and Labor law
Before finally hiring a new employee, most employers first offer him to undergo a probationary period. This period is difficult not only for the employee, but also, to some extent, for the management of the organization. How to arrange a probationary period, how much to pay for it, how to fire an employee if he failed to cope with the assigned functions - the employer faces quite a lot of questions. Let's look at this issue in more detail.
What is the essence of a probationary period and why is it needed?
Probation- this is the time when an applicant for a position has not yet been finally accepted into the company’s staff, but has already begun to perform work tasks. The purpose of the test for the employer is to check how well the employee matches the vacancy in terms of his work skills and abilities, and to make sure that he is suitable for the team in terms of personal qualities. For the applicant, the probationary period is also important - he can a short time understand whether he is able to cope with the assigned tasks and whether the work meets his expectations.
Attention! It is illegal to allow an employee to work without concluding an employment contract with him, even if we are talking only about a probationary period. The law requires that the fact of employment, even during the probationary period, be documented. Otherwise, the employer will face administrative liability and large fines.
Documentation of the probationary period
As soon as the employee begins to perform job responsibilities, it is believed that he has already found a job. Even if it is just a probationary period and even if there are no written contractual obligations with it.
However, in order to avoid disagreements with the law, the employer should take care of the documentary side of the probationary employment in advance. In particular, the main document regulating the relationship between the organization and the employee for the period of inspection is employment contract. At the same time, it must certainly contain a section on the probationary period with a clearly defined period and its conditions.
In situations where an employee begins to work without drawing up an employment contract, a separate agreement on a probationary period must be concluded with him in advance, which will subsequently be included in the employment contract.
For your information! If a person started working without a written employment contract or the employment contract does not stipulate a probationary period, the law regards this as the employer hiring the employee without passing a test. Verbal agreements have no meaning.
Registration of a probationary period in a work book: to write or not
The question of whether it is necessary to make an entry about trial period in the work book, is of interest to many employers.
The law clearly establishes that there is no need to mention a probationary period in the work book, only a record of hiring is made in it, and from the date from which the employee began work labor responsibilities in verification mode.
The employer must make all the necessary entries in the work book of each employee who has worked for him for more than 5 days, but only if this permanent place work for a person.
Thus, the condition of the probationary period is fixed only in the employment contract.
Duration of probationary period
The probationary period cannot be endless and the Labor Code clearly establishes a time limit for checking the suitability of a new employee for the position held - three months, that is 90 calendar days. After the three-month period, the employer must decide whether he is satisfied with the person or whether it is better to part with him.
But there is also exceptions:
- Employees who have entered into an employment contract for a period of 2 to 6 months, as well as those employees who are engaged in seasonal work, are entitled to undergo testing for no more than two weeks;
- Executive employees, for example, directors of organizations, branches and structural divisions, and their deputies, as well as chief accountants and their deputies, can be tested for 6 months;
- officials hired for the first time in the civil service or who have moved from one position to another must work in a probationary mode in a new place for 3 to 6 months.
Important! After making sure that new employee If he is completely satisfied, the employer can shorten the probationary period. But he has no right to renew it under any circumstances.
It should be remembered that there are certain periods of time that cannot be included in the test period. For example, if:
- the employee was on sick leave;
- was engaged in public or government duties;
- went on short leave without salary;
- was on vacation due to training;
- was actually absent from work for any other valid reasons.
Attention! The probationary period must be included in the length of service, giving him the future right to planned paid annual leave.
Payment for the probationary period
By law, work during the probationary period must be paid by the employer, and in exactly the same way as if the employee was already on staff on a permanent basis.
The legislator explains this requirement simply: since labor is performed in these two cases equally and in equal value, then infringement of the rights of an employee on probation will be considered a violation of the law.
However, employers are not always ready to put up with this state of affairs and quite often circumvent this rule. And they do it quite legally too. For example, for the period of a probationary period, an employment contract may be concluded with an employee with a salary specified in it, as if permanent. After passing the test, this employment contract is terminated by mutual consent of the parties and a new one is concluded with a higher salary. Another way: payment of bonuses and additional payments to the organization, depending on the length of service in it.
Who has the right not to undergo probation?
- women who are expecting a child and have children under three years of age;
- minors;
- those who are transferred from one organization to another by agreement between employers;
- employees appointed to a position after passing a competition in the manner prescribed by law;
- employees under an employment contract valid for up to two months;
- other persons prescribed in the Labor Code of the Russian Federation.
What to do if a new employee fails the probationary period
If during the test it turns out that the employee is not suitable for performing the tasks assigned to his job duties, the management of the enterprise. And this must be done during the trial period, at least, on his last day. Otherwise, the employee will be considered to have successfully completed the test.
Important! During the probationary period, the employer should closely monitor how the employee completes the tasks given to him. If they are untimely or of poor quality, this must be recorded (for example, in official memos and memos). In the future, if events develop unfavorably, scrupulous documentary support of the test will facilitate the collection of evidence to justify the dismissal of an employee who failed the test.
It is necessary to warn the employee about the impending dismissal no less than three days in advance in writing. The notification must include mandatory indicate the reasons why it is believed that the employee did not pass the test, and also attach documents confirming them.
To summarize, we can draw the following conclusion: the probationary period is the time when, despite particularly close attention from the employer, the new employee has all the rights and responsibilities of employees on a permanent basis. You need to approach the registration of a probationary period in strict accordance with the requirements of the law - this will allow you to avoid future claims, both from staff and from regulatory structures.
Only lazy employers do not currently establish a probationary period for employees. Even if its use is unlawful, the employer, just in case, prefers not to remove it from standard form employment contract. At the same time, use wisely this condition Only a few have learned how to part with employees.
The possibility of establishing a test when hiring is provided for in Art. 70 Labor Code of the Russian Federation. Testing, according to this article, means checking an employee to determine his compliance with the assigned work.
Test Establishment Basics
When fixing the condition of a probationary period in an employment contract, you should remember the restrictions and prohibitions defined by the Labor Code of the Russian Federation. Thus, a hiring test is not established for (Part 4 of Article 70 of the Labor Code of the Russian Federation):
- 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 for educational programs that have state accreditation and are entering work for the first time in the acquired specialty within one year from the date of receiving professional education at the appropriate level;
— persons elected to an elective position for paid work;
— persons invited to work by way of transfer from another employer as agreed between employers;
— persons concluding an employment contract for a period of up to two months;
- other persons in cases provided for by the Labor Code of the Russian Federation, other federal laws, and a collective agreement.
If a probationary period, in violation of the prohibition, is established by an employment contract, then it should be borne in mind that the probationary condition will not be applied, and the dismissal of an employee on the basis of an unsatisfactory test result (Part 1 of Article 71 of the Labor Code of the Russian Federation) in the described situation will be recognized by the court illegal.
In addition, it should be remembered that the law establishes restrictive (maximum) test periods (Parts 5 and 6 of Article 70 of the Labor Code of the Russian Federation):
- three months for all employees,
— six months for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations (unless otherwise established by federal law),
- two weeks - when concluding an employment contract for a period of two to six months.
At the same time, the period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.
The absence of a probationary clause in the employment contract means that the employee was hired without a trial (Part 2 of Article 70 of the Labor Code of the Russian Federation). In the case where an employee is actually allowed to work without drawing up an employment contract (Part 2 of Article 67 of the Labor Code of the Russian Federation), the probationary condition can be included in the employment contract only if the parties formalized it in the form of a separate agreement before the start of work. The literal interpretation of this norm does not allow an employer who “forgot” to establish a probationary period to establish it additional agreement to the employment contract already in the process of labor relations.
For your information.During the probationary period, the employee is subject to the provisions labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations (Part 3 of Article 70 of the Labor Code of the Russian Federation). The literal interpretation allows us to draw an unambiguous conclusion: the amount of wages cannot be reduced during the probationary period. In fact, violation of this rule is allowed by most employers.
Registration of test conditions
Drawing up the test conditions itself does not present any particular difficulties. The text of the employee’s employment contract should include the following provision: “...The employee is given a probationary period of three months.”
The inclusion of this phrase in the employment contract provides certain benefits to both parties to the employment relationship. This allows the employer, before the expiration of the test period, to terminate the employment contract with the employee if the test result is unsatisfactory in the manner prescribed by Part 1 of Art. 71 Labor Code of the Russian Federation.
For your information.During the probationary period, the employee is subject to all the norms of the Labor Code of the Russian Federation, including any grounds for dismissal provided for by the Labor Code of the Russian Federation and suitable for the specific current situation. That is, an employee can be fired for absenteeism (subclause “a”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation), and due to staff reduction (clause 2, part 1, article 81 of the Labor Code of the Russian Federation), and for other reasons .
An employee, if there is a probationary clause in the employment contract, will be able to notify the employer of his dismissal within a shortened period. So, if during the probationary period he comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract according to at will, warning the employer about this in writing three days in advance (and not two weeks, as required by Article 80 of the Labor Code of the Russian Federation for voluntary dismissal).
Please note that the reason given in the resignation letter is general – “at one’s own request.” The fact that the work did not meet the employee’s expectations can be kept silent. In any case, a notice period of three days rather than two weeks will apply.
Registration of termination of an employment contract
With registration of dismissal on the basis provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation - as a result of an unsatisfactory test, many employers have problems. To minimize the risk of dismissal being declared illegal on the above grounds, we will go through all the stages of this procedure together.
For convenience, consider the following situation.
A new employee was hired at the company, and an employment contract was concluded with him on February 17, 2014. According to the terms of the employment contract, the employee must begin work on this day. The employment contract provides for a probationary period of three months. According to the new employee’s immediate supervisor, the level of knowledge, skills, and attitude to work do not meet the employer’s requirements. This official reported this to the director of the enterprise at a planning meeting on April 30, 2014 and proposed to initiate a dismissal procedure as a result of an unsatisfactory test result. At the same time, the employee’s manager explained that the new employee was absent from work from 03/13/2014 to 03/17/2014 due to illness (a certificate of incapacity for work was submitted).
1. We count the deadlines
First you need to find out the end date of the probationary period. Under the conditions of the situation under consideration, the last day of the probationary period falls on 04/12/2014. However, due to the employee’s absence from work from 03/13/2014 to 03/17/2014, the test period must be extended by five calendar days, that is, until 04/17/2014.
Having established the end date of the probationary period, we determine last date, in which the employee must be given notice of an unsatisfactory test result. In accordance with Part 1 of Art. 71 of the Labor Code of the Russian Federation, notification should be submitted no later than three days before the end of the probationary period.
According to Art. 14 of the Labor Code of the Russian Federation, the period of time with which the Labor Code of the Russian Federation associates the emergence of labor rights and obligations begins with the calendar date that determines the beginning of the occurrence of these rights and obligations. The period of time with which the Labor Code of the Russian Federation associates the termination of labor rights and obligations begins the next day after the calendar date that determines the end of the labor relationship. Terms calculated in years, months, weeks expire on the corresponding date last year, month or week period. The period calculated in calendar weeks or days also includes non-working days. If the last day of the period falls on a non-working day, then the end of the period is considered to be the next working day following it.
In our situation, the last day to serve notice of upcoming dismissal will be 04/14/2014.
Question. Is it possible to begin the procedure for dismissing an employee before the end of the probationary period if the employer comes to the conclusion that the employee did not complete the probationary period?
Start the dismissal procedure under Part 1 of Art. 71 of the Labor Code of the Russian Federation as a result of an unsatisfactory test result, it is possible at any time. However, it should be borne in mind that by that time a sufficient amount of documented evidence should have been collected that the employee did not pass the test.
2. We collect evidence of an unsatisfactory test result
Such grounds may include reports/memos from the manager and other services, acts of internal investigations of employee misconduct, acts of inspections recording erroneous actions of the employee, and other written evidence.
3. We issue a notification
The notification should clearly and clearly describe the reasons why the test result was found unsatisfactory (Example 2).
delivery
JSC "Speed Delivery"
N. A. Kozlova
Moscow, st. Pirogova, 7, apt. 24
Notification
Dear Nikolai Alexandrovich!
We notify you that the test result established by clause 2.5 of the employment contract concluded between you and OJSC “Speed Delivery” on February 17, 2014 (No. TD-14) was recognized by the employer as unsatisfactory for the reasons stated below.
In accordance with the official investigation report dated March 25, 2014, based on the results of an inspection during the period of your work from February 17, 2014 to March 24, 2014, a violation of clauses 4.1 and 4.1.2 of the Rules for the delivery of items to addressees, approved by order dated October 7, 2011 N 417, was revealed, and clause 3.1 of the job description of the leading specialist of the delivery department, approved on October 30, 2012, namely: the shipment dated February 25, 2014 N 41 was delivered to the addressee 14 hours late, the shipment dated February 26, 2014 N 54 was delivered 2 hours late, departure dated 03/06/2014 N 62 was delivered 4 hours late.
Due to the unsatisfactory result of the test, the management of High-Speed Delivery OJSC made a decision to terminate your employment contract dated February 17, 2014 No. TD-14 under Part 1 of Art. 71 of the Labor Code of the Russian Federation (if the test result is unsatisfactory) 05/16/2014.
I notify you that before the date of dismissal (05/16/2014) you retain the right to terminate the employment contract at your own request.
Director of OJSC "Speed Delivery" Smirnov N. A. Smirnov
If the employee refuses to sign the receipt of the notification (or refuses to read it), it is necessary to draw up a report about this (Example 3).
Open Joint-Stock Company"Fast delivery"
Act
| 12.05.2014 | N 15 |
Moscow
On refusal to put a signature on the acquaintance
We, the undersigned: director Smirnov N.A., deputy director Tkachev E.N., Chief Accountant Nosov N.S., head of the personnel department of Ivanova N.K., drew up this act on the following:
Today, May 12, 2014, at 12:30 p.m. in the office of the director of High-Speed Delivery OJSC, N.A. Smirnov, the leading specialist of High-Speed Delivery OJSC, N.A. Kozlov, was presented with a notice dated 12.05 for review and signing upon receipt. 2014 N 45 about unsatisfactory test results. After familiarization Kozlov N.A. in the presence of all the undersigned officials refused to sign in receipt of the specified notice and sign in familiarization with it.
Smirnov N. A. Smirnov
Tkachev E. N. Tkachev
Nosov N. S. Nosov
Ivanova N.K. Ivanova
4. We give the employee a choice
In most cases, upon receiving such notice, employees write a letter of resignation of their own free will. The law does not prohibit, if there are several grounds for dismissal, choosing one of them, including dismissing an employee on his own initiative.
Question. The employee was given a notice of unsatisfactory test result on the verge of deadlines. Immediately after reading it, he wrote a letter of resignation of his own free will, but indicating the deadline for dismissal in two weeks, as provided Art. 80 Labor Code of the Russian Federation. However, the date of dismissal will already go beyond the probationary period. How to protect yourself from the risk of an employee withdrawing his application for dismissal immediately after the end of the probationary period?
You can only protect yourself from such a tricky turn of the situation:
- asking the employee to rewrite the application indicating the date of dismissal, which is included in the probationary period;
— by terminating the employment contract by agreement of the parties on the “required” date;
- by terminating the employment contract on a previously planned basis, provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation, on the date specified in the notice, despite the presence of the employee’s resignation letter.
5. Formalize your dismissal
The dismissal procedure in in this case standard.
Step 1. On the day of dismissal, you must issue a dismissal order (the project can be prepared in advance).
For your information.You have the right to use unified form N T-8, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1 “On approval of unified forms of primary accounting documentation for labor accounting and its payment.” Despite the fact that from 01/01/2013 the unified forms are no longer mandatory for use, they provide the greatest information content and for many employers remain the most convenient due to their versatility and familiarity. However, do not forget that they must be approved by order of the company.
Step 2. Then the employee must be familiarized with the order under his personal signature or an appropriate entry must be made on the order (instruction) in the case where the order to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under his signature (Part 1 of Article 84.1 Labor Code of the Russian Federation).
Step 3. Make a full settlement with the employee in accordance with the settlement note (Article 140 of the Labor Code of the Russian Federation).
Step 4. Issue to the employee copies of documents, including a 2-NDFL certificate, if there is his application, a certificate of the amount of earnings for the two calendar years preceding the year of termination of work (clause 3, part 2, article 4.1 of the Federal Law of December 29 .2006 N 255-FZ “On mandatory social insurance in case of temporary disability and in connection with maternity"). The certificate form was approved by order of the Ministry of Labor of Russia dated April 30, 2013 N 182n.
Step 5. Record the dismissal in the work book. According to Art. 84.1 of the Labor Code of the Russian Federation, an entry in the work book about the basis and reason for termination of the employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law and with reference to the relevant article, part of the article, paragraph of the article of the Labor Code of the Russian Federation or other federal law.
Step 6. Arrange the remaining personnel documents for accounting of labor relations:
— employee’s personal card (most employers continue to use the unified form N T-2). It is necessary to obtain the employee's signatures on the card in certain places provided on the form;
— notice of termination of the employment contract (dismissal), sent to the military registration and enlistment office within two weeks from the date of dismissal. The employee's signature is not required on it ( Guidelines on maintaining military records in organizations, approved by the General Staff of the Armed Forces of the Russian Federation dated April 11, 2008).
Step 7. Issue a work book to the employee. The issuance is carried out under the personal signature of the employee with the date of receipt in the logbook recording the movement of work books and inserts in them (Example 5). The form was approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions for filling out work books.”
Appendix No. 3
TO Resolution Ministry of Labor of Russia dated October 10, 2003 N 69
Book of movement of work books and inserts in them
| N p/p | Date of hiring, completion work book or an insert in it | Last name, first name and patronymic of the owner of the work book | Series and number of the work book or its insert | Position, profession, specialty of the employee who handed in the work book or for whom the work book or insert in it was filled out | Name of the place of work (indicating the structural unit) where the employee was hired | Date and number of the order (instruction) or other decision of the employer on the basis of which the employee was hired | Signature responsible person who accepted or filled out a work book | Received for completed work books or inserts in them (rub.) | Date of issue of the work book upon dismissal (termination of the employment contract) | Employee's signature when receiving a work book | ||
| Number | Month | Year | ||||||||||
| 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 |
| 1 | 09 | 01 | 2014 | Kulikov Anton Vladimirovich | Series - TK-IV, N 2457454 | Specialist | 09.01.2014 | Signature | ||||
| 2 | 09 | 01 | 2014 | Nazaridze Turam Davidovich | Series - TK-II, N 5574322 | Leading Specialist | JSC "Speed Delivery", delivery service | 09.01.2014 | Signature | |||
| 3 | 17 | 02 | 2014 | Kozlov Nikolay Alexandrovich | Series - TK-IV, N 8604301 | Leading Specialist | JSC "Speed Delivery", delivery service | 17.02.2014 | Signature | 150 | 16.05.2014 | Kozlov |
If it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for it or agree to send it by mail. From the date of sending the specified notification, the employer is released from liability for the delay in issuing the work book (Article 84.1 of the Labor Code of the Russian Federation).
Mistakes when terminating an employment contract
An analysis of practice showed that the main mistakes when dismissing due to this basis are:
1) failure to comply with the warning period or lack of warning at all. The employer must notify the employee of termination of the employment contract on this basis no later than three days in advance;
2) failure to comply with the written form of the warning;
3) ignoring the legislator’s requirement to indicate the reasons that served as the basis for recognizing this employee as having failed the test. The employer's statement about an unsatisfactory test result cannot be unfounded; it must be supported by documents;
4) incorrect classification of actions/inactions as the reason for the employee’s unsatisfactory test result. For example, if you hired a driver without including in his duties washing the entrusted car, then his failure to perform this function in no case can be regarded as evidence of an unsatisfactory test result;
5) termination of the employment contract on the above grounds after the expiration of the probationary period.
All specified requirements for registration are provided for in Part 1 of Art. 71 Labor Code of the Russian Federation. Despite this, the number of employers forced to reinstate employees dismissed in violation of these requirements is not decreasing.
Arbitrage practice. An employee dismissed under Part 1 of Art. 71 of the Labor Code of the Russian Federation, was reinstated by the court. Considering the case, the court came to the conclusion that the defendant did not comply with the dismissal procedure, and did not indicate specific reasons that served as the basis for recognizing the employee as having failed the test, which is a gross violation of labor legislation. The right to evaluate the employee’s test results belongs to the employer, who during the probationary period must find out the business and professional quality employee. Therefore, when dismissing an employee as having failed the test, the obligation to prove the fact of his unsatisfactory work rests with the employer.
However, the defendant did not provide sufficient and convincing evidence to confirm the facts set out in the annex to the employee’s notification about the unsatisfactory test result. It does not follow from the evidence presented how the plaintiff’s level of professionalism and the quality of her performance of her duties were assessed. According to the court, the evidence convincingly indicates improper execution the plaintiff's official duties, the defendant did not provide. Thus, the court came to correct conclusion about the absence of grounds for recognizing the employee’s test results as unsatisfactory (ruling of the St. Petersburg City Court dated October 14, 2013 N 33-15722).
* * *
It should be remembered that upon dismissal under Part 1 of Art. 71 of the Labor Code of the Russian Federation, the most important thing is compliance with the dismissal procedure. Moreover, it will be legal only if there is evidence of unsatisfactory test results for the employee.
Even if the employer tries to comply with all the requirements of the law, as practice shows, he is not immune from the reinstatement of the employee. If the court establishes specific circumstances, the court may conclude that the employer violated the dismissal procedure, despite the fact that the employee’s actions may show signs of abuse of rights (for example, silence about the presence of an illness and open sick leave).
A probationary period may be assigned to an employee in order to check whether he is truly suitable for the work assigned to him. If the test results turn out to be unsatisfactory, the employer will be able to terminate the employment contract with such an employee in a simplified manner, i.e., by warning him only 3 days in advance. calendar days and without paying compensation upon dismissal (except for compensation for unused vacation). We talked in more detail about the dismissal of an employee who did not pass the test in a separate article. By the way, an employee of his own free will can also resign during the probationary period earlier than usual, that is, by notifying the employer not 2 weeks in advance, but only 3 calendar days in advance (Part 4 of Article 71 of the Labor Code of the Russian Federation).
Since a probationary period is given to the employer to ensure that the job is suitable for the employee and the employee can cope with it, can the employer not enter into an employment contract with the employee until the end of the probationary period?
Is there a probationary period?
Labor Relations between an employee and an employer arise on the basis of an employment contract concluded between them (Part 1 of Article 16 of the Labor Code of the Russian Federation). The employment contract is concluded in writing and drawn up in 2 copies, signed by the parties (Part 1, Article 67 of the Labor Code of the Russian Federation). In the case where the employment contract was not drawn up in writing, but the employee began work with the knowledge or on behalf of the employer, it is considered that the employment contract has been concluded. The employer is obliged to formalize it in writing no later than 3 working days from the date of the employee’s actual admission to work (Part 2 of Article 67 of the Labor Code of the Russian Federation).
The Labor Code of the Russian Federation indicates that the test condition must be provided for in the employment contract with the employee upon its conclusion. Accordingly, if there is no probation clause in the contract, this means that the employee was hired without a probationary period.
In the case where the employee actually started work without an employment contract, a probationary clause can be included in the contract (which must be concluded within 3 days) only if the parties, before the actual start of work, have drawn up a written agreement on the probationary period (Part 1, 2 Article 70 of the Labor Code of the Russian Federation).
It turns out that an employee who is provided for a probationary period by a separate agreement can work without drawing up a contract for no more than 3 working days. Further failure to conclude an employment contract with such an employee is considered illegal.
Liability for an employer who does not enter into an employment contract
If an employer does not draw up an employment contract with an employee on a probationary period, such employer may be brought to administrative liability on the basis of Part 4 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. Responsibility for evasion or improper execution of an employment contract is as follows:
- a fine on the employer's officials from 10,000 to 20,000 rubles;
- fine for the individual entrepreneur from 5,000 to 10,000 rubles;
- fine for the employer-organization from 50,000 to 100,000 rubles.