Can an employer, on its own initiative, dismiss an employee on a probationary period? Is dismissal permissible during the trial period. Correct algorithm for issuing supporting documents

As a rule, labor activity in a new place begins with a probationary period. During this period, the employer can initiate the dismissal of the employee, and the employee has the right to leave the job for on their own... In any case, dismissal on probation must be carried out in accordance with all the rules that will be discussed in this article.

Is it permissible to dismiss during the trial period

The probationary period is the period during which the employer can identify and evaluate professional quality hired employees. The conditions of the probationary period are prescribed in the employment contract, which should be carefully reviewed before signing. In this time period, the parties to the transaction must assess the feasibility of continuing the employment relationship.

The organization of the trial period is regulated by the provisions of Article 70 Labor Code Russian Federation... The duration of this time period is prescribed in the contract, and is also reflected in the order for admission to the position.

However, it is unacceptable to establish a probationary period for the following categories of citizens:

women during pregnancy;
women raising babies under the age of one and a half years;
citizens under the age of eighteen;
graduates of higher and secondary professional educational organizations(when applying for a job in a specialty within a year after receiving a diploma);
people hired as a result of a competition;
people hired as a result of the elections;
people who came to work as a result of transfer (by invitation) from a similar position from another company;
citizens with whom an employment agreement has been drawn up for a short period (up to two months).

Thus, answering the question of whether a pregnant woman can be fired on a probationary period, we can say that no. This is due to the fact that, according to the law, it is unacceptable for women in a position to establish a verification period.

To confirm their status, the hired employee must independently provide identification documents. It is important to understand that the probationary period can only be applied when a new employee is hired for a vacant position. At the same time, if there is a need to transfer an existing employee of the company / institution to a new position, then the verification period is not assigned.

The length of the probationary period is individual in each case and depends on the position held. Most often, this period does not exceed three months, however, when a person is admitted to leadership position the test period can grow up to six months. When concluding an employment contract for a short period of two to six months, the trial period cannot be more than two weeks.

The duration of the verification period is determined in calendar days (including weekends and holidays). At the same time, those days on which the trainee did not go to work for a good reason (for example, was on sick leave, because of downtime at work, while performing public duties) are not included in this time period.

Reasons for dismissal

The grounds for dismissing a newcomer on probation and an existing employee are practically the same. However, if during the verification period the employee demonstrates unsatisfactory results of his labor activity, then the employer has the right not to issue him severance pay.

The most popular grounds for dismissing a person during the trial period at the initiative of the employer:

Low indicators obtained as a result of final certification.
Failure of the newcomer to perform his duties properly (for example, incompetence, absenteeism, lateness, etc.). In this case, the employer must perform a number of measures, for example, warn the employee about the inadmissibility of such an attitude to work in writing or by using other disciplinary action... Only after the implementation of these actions, the employer receives the right to dismiss the trainee.
Inflicting damage to the company resulting from the actions of a newcomer. This can be damage / theft of property, disclosure of trade secrets, etc. Before dismissing an employee, you will need to prove the employee's guilt.
Immoral behavior inappropriate for a person who holds a certain position in the company. For example, if a school teacher has humiliated the dignity of a student.
Going to work in an inappropriate way. For example, drunk or under the influence of drugs.
Submission of falsified documents when applying for a job. For example, providing a fake higher education diploma.
With a reduction in staff due to the liquidation of the company.

The most popular grounds for dismissing a person during the probationary period at the initiative of an employee:

The emergence of personal circumstances that arose after employment. For example, a forced move to another city, pregnancy, health problems of loved ones, etc.
Unsatisfactory working conditions. For example, poor lighting, microclimate, environmental performance, etc.
Understanding that the existing qualifications / experience / education do not correspond to the position held.
There is no prospect for career advancement.
The emergence of a more attractive job offer.

At the request of the employee

Regardless of whether an employee of the company is on probation or not, he always has the right to resign on his own initiative. This procedure will not cause much difficulty. In order to vacate the position, the employee will need to notify his employer in writing three days before the planned date of termination of the employment contract. However, if the parties to the agreement are ready to terminate the employment relationship earlier, then three days of working off will not be required.

In the text of the application, the reason for leaving the job should be indicated. For example: "I ask you to dismiss me of your own free will before the expiration of the probationary period, because my qualifications do not correspond to the position held."

If during the trial period the employer did not manage to terminate the employment contract, then the newcomer automatically remains in his position on a general basis. In this case, additional documents will not be required. For dismissal on their own initiative after the end of the test period, it will already be necessary to work not three days, but two weeks.

If, upon taking office, a contract was drawn up in which nothing was said about the probationary period, then after filing an application for dismissal, the employee must work in the company for another two weeks. In this situation, it does not matter at all how long a given person has worked in the firm (one week or ten years).

When a person leaves work during the probationary period, the employer must pay him wages(per working days) and compensation for unused vacation. Severance pay is issued only in a situation where this condition is spelled out in an employment agreement or other internal regulations.

At the request of the employer

In the process of admission to workplace a new employee concludes an employment contract with him, as well as a list of requirements and tasks for a probationary period for subsequent enrollment in the state. To successfully pass the test period, a beginner must solve all the tasks assigned to him.

If the employer has decided to expel the trainee, then he must notify him of this three days before the date of the proposed dismissal. The newcomer must be given a notice in writing. It prescribes the basis for excluding an employee from the company’s employees and indicates the day of cancellation of the employment agreement.

A sample notice of termination of an employment agreement can be found below:

If the employee has successfully passed the test period, then he is admitted to the staff of the company. Now the employer can dismiss the employee, but in this case the application of the simplified procedure is not available.

Expulsion of the trainee as not passed the probationary period

If the applicant vacant post failed to prove himself during the test period (to prove that he could fulfill the assigned labor duties), then the employer has every right to terminate the employment contract with him. In this case, it is not necessary to wait until this period ends. However, it is important that the fact of inadequacy of the vacant position, incompetence of the employee, is confirmed.

Evidence of negative completion of the procedure for verifying the competence of an applicant for a position in the company:

the applicant's report on the results of his labor activity during the trial period;
act of low quality of manufactured products;
report / memo on low quality of work performed;
minutes of a meeting of a special commission competent in assessing the results of the trial period;
facts of application of disciplinary measures in relation to a novice.

The employer does not have the right to expel the trainee while he is on official sick leave or vacation.

Algorithm of the employer's actions to dismiss the probationary trainee:

Transfer of a notice to the dismissed employee, in which it will be written that in three days the previously concluded labor contract will be canceled.
Issuing an order to dismiss an unsuitable employee. At the same time, it is important to familiarize the dismissed person with this order (against receipt).
Filling out the work book.
Carrying out a full payroll calculation.

In contact with

Establishing a probationary period when concluding an employment agreement is not mandatory, but employers often resort to a similar method of testing new employees. This is done in order to facilitate the dismissal of unsuitable personnel. However, before dismissing an employee on a probationary period, you need to carefully consider what grounds will form the basis of the order to terminate the employment agreement.

The test condition, which is set upon hiring, also plays the role of one of the ways to protect the interests of the employee himself. If the situation at the new place for some reason does not suit the hired employee, he will not have to work for two weeks in connection with the dismissal of his own free will. Thus, the establishment of the condition for the passage of the probationary period also protects the rights of the accepted employee.

Test period

In accordance with article 70 of the Labor Code of the Russian Federation, the limiting period for establishing a test is limited to three months in normal cases, and six in the case of hiring employees for the position of managers, the corresponding deputies and chief accountants. The maximum length of the probationary period is reduced to two weeks if the employment contract is concluded for a short period of 2 to 6 months. The specified terms cannot be changed upwards by agreement of the parties, the only exceptions are cases provided for by federal legislation.

For example, according to paragraph 1 of Art. 27 ФЗ dated 27.07.2004. No. 79? FZ "On the Civil Service of the Russian Federation", upon acceptance on civil service a probationary period from 3 months to 1 year can be established.

It should also be remembered that the trial period does not include days of actual absence from work for valid reasons (sick leave, vacation, etc.).

How to dismiss on probation

Both the employer and the employee can act as the initiator of the termination of the work contract during the probationary period. However, article 71 of the Labor Code of the Russian Federation provides that there is an employee's obligation to work for three days after filing an application. This norm greatly simplifies the life of an employee who needs short term terminate the employment relationship, for example, if a more favorable job offer has been received.

The employer, before dismissing an unsuitable employee during the probationary period, is obliged to warn about the decision in the manner prescribed by law. That is, no later than three days before the actual termination of the working relationship, the employee must be informed about the date and reasons for terminating the employment agreement. If the person was not notified of such a decision, and after the end of the probationary period specified in the agreement, he continues to fulfill his functional responsibilities, it is considered that the employee has successfully passed all the conditions of the test and his subsequent dismissal possible only in general order.

In all cases, before making a decision and dismissing an unsuitable employee at the end of the probationary period, you should carefully approach the preparation of the accompanying documents, since these actions can be challenged in court.

Pre-trial prohibition

Typically, the goal of an employer who makes such a clause in an agreement is to fire incompetent employees quickly and painlessly. However, when deciding whether it is possible to dismiss an employee on a probationary period, employers often forget that there is a list of persons who, in accordance with Art. 70 of the Labor Code of the Russian Federation, a probationary period is not initially established. In connection with this prohibition, such employees can be dismissed only in a general manner, on the grounds provided for in the thirteenth chapter of the Labor Code of the Russian Federation.

selected by competition)
pregnant women and those with children under the age of 1.5 years, women)
persons under eighteen years of age)
young specialists (within one year from the date of graduation from a state educational institution))
elected to an elective position)
invited in order of transfer)
who have entered into an employment contract lasting up to 2 months.

Federal laws and the collective agreement may provide for other categories of citizens who, when hiring, cannot include such a condition in the labor agreement.

Correct algorithm for issuing supporting documents

An employee who was dismissed on probation due to an unsatisfactory result has the right to appeal against such actions of the employer in court. Since, by default, the court always takes the side of the dismissed employee, the employer must have strong evidence that he is right. The pledge of the successful trial are correctly executed documents confirming that the employee did not cope with the test. The HR department is advised to consistently complete the following steps in the preparation of the relevant evidence of correctness.

In any case, the employee's mistakes must be recorded and drawn up in writing: the following can act as confirmation:

Reports)
Service notes of the immediate superior about the violation by the employee of the job description or employment contract}
Penalty Orders)
Written comments
Acts of poor-quality performance of work.

It is advisable to acquaint the employee with such documents against signature, and after each "mistake" require an explanatory note.

In the event that the above documents are absent, and all instructions were given to the employee orally, a special commission must be created at the enterprise to determine the results of the test and recommend how an employee can be dismissed on a trial period without breaking the law. The corresponding decision must be formalized in a protocol.

Dismissal notice

If, nevertheless, the final decision is made that the employee is not suitable for the duties of the vacant position, he must be warned about the upcoming dismissal. The warning period cannot be less than three days before the day of dismissal and the end of the probationary period (part 1 of article 71 of the Labor Code of the Russian Federation). Thus, the frequently asked question of whether it is possible to fire before the end of the probationary period has an unequivocally positive answer.

On the notification, the employee must sign his acquaintance and the corresponding date of delivery of the copy.

In case of violation of the three-day period and the end of the trial period, failure to pass the test cannot be the basis for termination of the employment agreement. The employee, in this case, can be dismissed only on general grounds.

Establishing a probationary period for an employee when hiring is an optional procedure. According to the 70th article of the Labor Code, such conditions can be provided in the employment contract, but the state does not require this. As shown by numerous polls, in most cases employers still prefer to accept newcomers only after a trial period in order to make sure of their competence, ability to do business, and usefulness for the company. But can an employer fire him on probation? More on this in today's article.

It is believed that such a period can be useful for the workers themselves. In a short time, they will be able to make a final decision: whether they want to stay in this place, or it does not suit them. In the case of the latter, the person has the right to notify the employer about this and leave the place without waiting for the end of the term. The employer may also agree to terminate the relationship with the employee before the trial period comes to an end. But only if the employee himself is not satisfied with this, he will have the right to ask the judicial authorities to intercede for him.

If the employer does not have a strong evidence base, as well as in the presence of errors in the execution of documents, the court may decide to return the employee to his position or collect funds from the employer for the forced downtime of the dismissed and moral damage inflicted on him.

How long can a trial period last?

The trial period can last for a maximum of six months. However, such a period, according to the Labor Code, is established only for applicants for managerial positions.

Terms of the test period:

up to two weeks, if it is a matter of concluding a contract, according to which the employee will perform his duties for no more than 6 months;
up to three months when it comes to a standard employment contract;
up to 6 months, when a person applies for the position of a manager, chief accountant or deputy manager.

The inspection period can be extended only if the employee took time off or was on sick leave. At the same time, the Law provides the circle of persons who are not entitled to a probationary period... It:

women at different stages of pregnancy;
under the age of majority;
young professionals who get a job for the first time after graduation;
employees who took up a position on a competitive basis;
employees with whom a contract is concluded for a period not exceeding two months;
employees who have been transferred from one position to another within the same company or from one employer to another as agreed.

This list is not complete and may be supplemented by regional laws.

If there is a dismissal during the probationary period, the employer is obliged to inform about this 3 days before the break labor relations... Exactly the same requirements for an employee who decides to quit on his own initiative: he will have to work three more days.

What can be the reason for dismissal?

To fire an employee on probation, the employer must have compelling reasons. Of course, he can do this on the basis of his own preferences, without relying on the requirements of the law, but in this case he risks losing in court if his already former employee wants to arrange litigation.

Reasons for dismissal:

the employee does not cope with his duties;
often skips;
does not follow safety precautions;
does not follow the rules labor discipline;
behaves unprofessional or his behavior defames the company.

In principle, there can be many more reasons. It is important for the employer to have proof of the justification for such a decision. The evidence base can be signed by the employee job descriptions, safety regulations, company charter, completed work reports, absenteeism reports, complaints from customers or other employees.

No special justification is required for a resigning employee. If he wanted to quit, this is his right, which he can use at any time, even during a trial period.

In order to fire an employee, the employer needs to follow some rules. The main thing is to collect documents that confirm the validity of the decision to dismiss, the incompetence of the employee. After that, the employer is obliged to send the employee a notice, in which it is necessary to indicate the exact reasons for the dismissal, and then issue an appropriate decree. The note on the delivery of the notification and on the preparation of the order must be entered in the order registration log, the employee must put his signature in the log, confirming that he is familiar with the texts of the documents.

Within ten days, all funds due to the employee must be paid. This is not only wages, but also compensation if a person has worked for more than 15 days, during the prescribed vacation, which the dismissed did not take advantage of, sick leave payments, if the employee took time off due to ill health. Compensation is calculated taking into account the time that the employee spent at work, his total length of service. The enterprise keeps in its archives a photocopy of the work book of the dismissed, the employee receives the book after the entry of the reason for the dismissal and the stamp of the enterprise has been entered in it. Labor book need to be handed over only to hands. If the person did not pick it up, he can be sent a notification by mail that it is necessary to come and pick up his document. You cannot send a book by mail or courier delivery.

After the entire procedure, a note of dismissal must be affixed in the employee's personal file.

If any of these points were not executed correctly or were not performed at all, the employee will have a better chance of proving the unlawfulness of the dismissal in court.

What is useful to know

There are a number of features of dismissal on a probationary period that are useful for both employers and those who are hiring to know:

In this case, a two-week working off is not provided. There is only a three-day deadline for the termination of all employment relationships.
You cannot fire a person when he is on sick leave.
When dismissing employees who receive material resources or important documents at their disposal, the employer has the right to establish a procedure for accepting and transferring cases that does not contradict the Labor Code.
All provisions of the Labor Code governing probationary dismissal are equally valid for both government agencies both enterprises and private ones.

In the Russian jurisprudence there are many cases when employees wrote complaints about their employers, who, in their opinion, dismissed them for no particular reason, at their own request. And the court often satisfies such claims. In some cases, he requires the employer to pay compensation to the person, in others - to reinstate the employee in office.

A dismissed employee can fight for his rights quite successfully in all cases when the employer did not pay him the due funds after the probationary period, dismissed him without serious reason, did not familiarize him with job responsibilities or did not give notice of dismissal three days before the order was issued.

Dismissal is possible both at the initiative of the employer and at the initiative of the employee.

The employer has the right to establish a probationary period for the applicant when hiring. The provision on the availability of the test must be specified in the employment contract.
The probationary period cannot exceed 3 months, and for some categories of workers - 6 months.

The probationary period is established in order for both the employee and the employer to "take a closer look" at each other. The employer must assess the level of professionalism of the applicant, and the employee must understand the specifics of the job.

During the probationary period, the employee may understand that this work does not suit him. He can resign by writing a statement of his own free will 3 calendar days before the date of dismissal. If the parties agree with each other, then you can resign the next day.

The employer does not have the right to prevent the dismissal of an employee on a probationary period. The application is written in accordance with the rules of the Labor Code of the Russian Federation. The employer must pay the leaving employee wages and compensation for several days of unused leave. If an employment or collective agreement provides for severance pay, the employer must pay it as well.

If the employee has not passed the test, the employer has the right to terminate the employment contract with him on this basis. This is stated in Art. 71 of the Labor Code of the Russian Federation. Dismissal on the initiative of the employer on a probationary period must be properly formalized. Otherwise, the employee can challenge such dismissal in court, recover from work, demand compensation from the employer for forced truancy, as well as moral and material harm.

If the employee has not passed the probationary period. Then the employer can dismiss him at any time, warning him 3 calendar days in advance. Unsatisfactory test results should be reported accordingly.

The employer must draw up an act in which the violations that the employee made during the probationary period will be described. The employee must familiarize himself with these results against signature.

The notice must be in writing. It must indicate the reasons for dismissal on probation at the initiative of the employer.

The employer is not required to notify the union body or pay such employee severance pay. In the Labor Code of the Russian Federation there are no direct instructions on this.

In addition to the negative test results, any of the grounds specified in Art. 81 of the Labor Code of the Russian Federation.

The trial period begins on the first working day. In accordance with Art. 68 of the Labor Code of the Russian Federation, the employer is obliged to familiarize the employee against signature with the internal regulations and labor discipline.
Violation of these rules, as well as discipline, is a valid reason for terminating the employment relationship during the probationary period.

In addition to discipline violations, the employer can dismiss an employee on a probationary period:

with staff reductions;
upon liquidation of an enterprise;
when transferring this employee to another employer by agreement between these employers;
when the owner of the enterprise changes and the employee refuses to work with this owner;
if the employee refuses to move to another locality together with the employer;
the employee's refusal to continue his labor activity if the employer unilaterally changed the terms of the employment contract in accordance with the Labor Code of the Russian Federation;
other grounds listed in Art. 81 of the Labor Code of the Russian Federation.

Any violation must be duly documented:

it must be recorded in the presence of several witnesses;
the guilt of this particular employee must be proven;
the employer must demand written explanations from the employee;
an act must be drawn up and a dismissal order issued;
the employee must familiarize himself with the order;
the employer is obliged to make all payments to the employee, which are provided for by the Labor Code of the Russian Federation.

This dismissal procedure also applies to employees who are on probation.