The procedure for dismissing an employee due to failure to complete the probationary period

Labor legislation on probationary periods

The Labor Code of the Russian Federation deals with the issues of probationary period:

Article 70 “Test for employment”;
Article 71 “Result of the test for employment.”

They also stipulate the possibility of dismissing an employee if he has not completed the probationary period. Some probation issues are governed by Federal laws, such as details of probation for government employees

There is the following procedure for dismissing an employee who has not completed the probationary period, which all law-abiding employers must comply with:

Such an employee should be warned (necessarily in writing) about the impending dismissal no later than three days in advance (the reasons why the employee was found to have failed the test must be indicated, and documents confirming the unsuccessful and insufficient test result must also be referred to). The worker should read the notice and sign the employer's copy. If the trainee refuses to sign, an act must be drawn up with the signatures of at least two witnesses.
According to Art. 71 of the Labor Code of the Russian Federation, issue an order to terminate the employment relationship with this employee in the T-8 form, which was approved by Resolution of the State Statistics Committee of Russia No. 1 of January 5, 2004.
Make final payments to him on the day of dismissal. It is worth noting that if an employment agreement is terminated due to an unsatisfactory test result, severance pay should not be paid to the dismissed employee (Part 2 of Article 71 of the Labor Code of the Russian Federation).
On the day of dismissal, give the employee his work book with a record of dismissal already included in it. The work book is issued to the dismissed employee only after signing the personal card (Form No. T-2), and in addition, in the book for recording the movement of work books and inserts for them. If the dismissed employee is not at the workplace on the day of termination of his employment contract, he must be sent a notice by mail with an urgent request to appear for his work book. The employer may be released from liability for the delay of the work book only if such notice is sent.

We fire you wisely

So, let’s say the decision has already been made, the conclusion has been made that the employee did not pass the probationary period, now the employer is faced with the task of correctly formalizing the dismissal based on the results of the probationary period, because dismissal is always a risk of getting a lawsuit from an offended former employee.

Procedure

Let's consider the procedure in stages:

We prepare a justification (as a rule, the personnel management department or human resources is responsible for this stage) - documents confirming failure to complete the probationary period:
- memos from the line manager about the employee’s improper performance of job duties;
minutes of the decision-making commission meeting, etc.

Also, the employer must have written reports from the employee on the fact of completion of work and explanatory notes on the fact of non-fulfillment.

In case of violation of labor discipline, it is necessary to prepare acts indicating violations, as well as explanatory notes from the employee himself.
Warn the employee in writing about the upcoming dismissal, no later than three days before the date of its occurrence, sending him a notice of failure to complete the probationary period with reasons.
Obtain a signature from the employee on the received copy of the notice.
Issue an order to terminate the employment contract.
Make payments to the employee on the day of dismissal.
Make an entry in the work book and hand it over to the dismissed employee.

In order for the employer to have the opportunity to do everything correctly and according to the law at the dismissal stage, when signing an employment contract, the employee must be familiarized with his job description.

Notification of Failure

There is no single sample notification. The only thing that is regulated is the mandatory presence of reasons for failure to pass the test. A sample might look like this:

Entry into the work book

Entry into the work book is standard: the required article of the Labor Code of the Russian Federation is indicated, the number and date of the order is recorded, the signature and seal of the organization is affixed. A sample entry might look like this:

Can everyone be given a probationary period?

The probationary period for employees is established by the decision of the employer: he can accept the employee without any testing, or, on the contrary, set the maximum possible probationary period.

The most important thing is that information about the probationary period must be indicated in the employment contract, otherwise it will be considered that the employee was hired without any probationary period. Even if you indicate in the hiring order that the employee was hired on a probationary period, but do not stipulate this in the contract, it is considered that the employee was hired without any probation.

p{amp}gt;We should not forget that a probationary period cannot be established for all categories of workers. The Labor Code prohibits establishing a probationary period:

pregnant women and women raising children under the age of one and a half years;
minor workers;
seasonal workers whose fixed-term employment contract is signed for two months or fewer days;
employees in paid elective positions;
employees hired for transfer work;
employees who have signed an employment contract for two months or less;
employees who won the competition for this position.

In some cases, such as government civil servants, these requirements may not be met.

Duration of probationary period

The probationary period may be two or three months. In some cases, for example, when it comes to testing managers, the probationary period can last from three months to six months.

For civil servants, the probationary period is on average up to six months. In some cases, the probationary period can last a whole year.

Employees with whom a fixed-term employment contract has been signed for a period of two to six months cannot be subject to probationary periods longer than two weeks.

It is impossible to extend the probationary period, just as it is impossible to dismiss employees as having not completed the probationary period if the tests have already ended at least a day ago.

How to quit during a probationary period

The procedure for dismissal during the probationary period.

Dismissal under IP is organized according to clause 3 of Art. 77 of the Labor Code of the Russian Federation, taking into account Art. 80, which regulates in more detail the termination of a contract at the request of an employee. In general, the sequence is:

The employee writes a statement in 2 copies addressed to the manager of the organization about his resignation at his own request. It must be presented to the manager at least 3 days before leaving. Both copies are subject to registration in the office;
The manager signs the application and issues a dismissal order, which must contain a link to the application, and notes its registration number. The contents of the order are brought to the attention of the person resigning, which he confirms with a signature;
An entry about dismissal is made in the work book, indicating Art. 77 Labor Code of the Russian Federation. The record also includes the order number;
A copy of the order is transferred to the accounting department to process the settlement with the former employee;
Payment is made in full on the employee’s final day of work;
Then the person leaving must return the work book;
At the request of the person leaving the organization, he is given reference documents: a certificate of average salary, insurance premiums, etc.

If the notice period has not expired, you may change your mind about quitting by withdrawing your application. His position will be retained unless another employee has already been invited in writing.

Dismissal of someone who has not passed the probationary period: step-by-step instructions

To terminate an employment contract if the probationary period is not completed, the employer must obtain a conclusion. It is usually drawn up by the immediate supervisor of the employee undergoing the test.

How to fire during the probationary period step by step:

Send a notification to the employee.
Draw up a dismissal order.
Make an entry in the work book.
Prepare and issue documents.
Pay in full.

Let us consider the procedure for dismissing someone who has not completed the probationary period in detail.

Step 1: warning of dismissal during probationary period

Warning of dismissal based on the results of the probationary period means notification. It is sent to the person being dismissed at least three days before the termination of the contract. The countdown begins from the day following the date of receipt of the document.

Note: you can send the employee a letter about the end of the probationary period with notification, but it is better to hand it in person, asking him to sign the second copy.

Contents and sample notice

What information is indicated in the notification:

name, tax identification number, checkpoint of the organization;
Full name, position of manager;
Full name, position of the person being dismissed;
reference to Art. 71 Labor Code of the Russian Federation;
reasons for failure to pass the IP;
date of termination of the contract;
date of compilation, signature.

Sample notification

Consultation on document preparation

Step 2: Order to Fail Probation

If the probationary period is terminated early due to unsatisfactory results, a dismissal order is drawn up. This is usually done on the last working day.

On the order, the person being dismissed must sign that he has read it. If he refuses to do this, a corresponding note is made.

In the order to terminate the contract during the probationary period, you must refer to Part 1 of Art. 71 TC as a basis.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

End of probationary period

The probationary period does not always end on the day specified in the employment contract. The fact is that the probationary period does not include those days when the employee was absent from the workplace. If an employee is undergoing a probationary period, for example, from the tenth of January to the tenth of February, but from the fifteenth of January to the twentieth was at home due to illness, his probationary period is extended until the fifteenth of February - exactly the number of days that the employee was absent. An appropriate order must be issued to extend the probationary period due to the employee’s absence from the workplace.

In other cases, the probationary period ends in two ways.

1. If the employee fails the test, he is dismissed for failure to complete the probationary period. In this case, it is not necessary to wait until the end of the probationary period indicated in the documents - the employee can be dismissed on any day, having previously warned him about this.

2. When the employee successfully completes the probationary period, he continues to work at the enterprise as before. No special documents are required. Even if the employee did not cope with the probationary period, but after the end of the specified period continues to work - that is, the employer for some reason did not have time or even forgot to fire him - it is considered that the employee passed the test successfully.

Who cannot be fired due to an unsatisfactory test result?

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

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

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

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

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

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

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

Yes, you can.

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

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

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

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

Sick leave on probation

An employee on sick leave cannot be fired.

If the subject is on sick leave, this time period is not included in the IS. In case of illness, it is subject to extension for the duration of the sick leave.

When an intern receives a notification from the employer before going on sick leave about the intention to terminate the contract with him, his dismissal is postponed for the number of days during which the temporary disability occurs.

We invite you to read: When can you take leave under the Labor Code?

During a period of temporary incapacity for work, an employee who is on self-employment can also notify the employer 3 days in advance of the decision to resign. Here we must take into account that the agreement will be terminated even if the employee is still on sick leave.

Sick leave is paid in an amount depending on length of service.

Sickness benefits must be paid on a general basis.

The main argument in court is a properly executed notice

The employer issues a dismissal order.

The notice must be provided to the employee 3 days before his dismissal. He must have the opportunity to familiarize himself with its contents.

The employer is recommended to attach to the notification copies of the documents from which the conclusion about the negative test result was made.

It can be prepared by a personnel department employee who has received appropriate instructions from the curator. It must contain a reference to the Labor Code of the Russian Federation. The notification must be certified by the seal and signature of the manager.

If the dismissed person refuses to sign it, an act must be drawn up. It must be completed in the presence of 2 witnesses.

After the dismissed person signs the notice (or draws up an act of refusal), an order is made in the T-8 form. It must indicate the article under which the dismissal is issued, as well as a link to the document with its number about the violations and inconsistencies committed by the employee.

The notification must be reasonable and duly certified. It acts as the basis for drawing up a dismissal order.

When designing, you should consider the following subtleties:

notice of dismissal must be given no later than 3 calendar days before the planned day of termination of the employment agreement;
if the notice is not given to the employee before the end of the probationary period, he is considered to have successfully passed the probationary period, and dismissal in a simplified manner becomes impossible;
The notice must indicate the reason for the non-compliance with the position;
It is prohibited to make a decision on dismissal if the employee is on sick leave or on vacation at that time.

Step-by-step instructions for dismissal during a probationary period may look like this.

Firstly, the employee who has not completed the probationary period should be notified in writing, in which the reason for such a decision must be noted. You can find a sample notification text on our website at the link below.

Sample notice of dismissal of an employee who has not completed the probationary period

If, based on the test results, it is clear that the trainee is not suitable for the proposed position, then he must be informed of his impending removal from position. The dismissal of an employee who has not completed the probationary period must be accompanied by written notice.

The notice of termination of the contract during the trial period must contain the date, reference number, signature of the person authorized to certify such documents and a seal. In addition, the notification should include the reasons why the employee intends to be dismissed from his position (Part 1 of Article 71 of the Labor Code of the Russian Federation).

So you should remember that you need to immediately document any violations and conduct proper disciplinary conversations. One or two explanatory notes can push the intern to a more conscientious attitude to work and dismissal will not be necessary. Or the recruit will make a deliberate decision to “leave on his own.”

Is notice of dismissal required during the probationary period?

Part 1 of Article 71 of the Labor Code of the Russian Federation stipulates that an employer may, on his own initiative, terminate an employment relationship with an employee as someone who has not passed the agreed check. For this reason, he has the right to reasonably dismiss the employee being inspected before the end of the probationary period appointed taking into account the requirements of Art. 70 Labor Code of the Russian Federation.

Part 5-6 art. 70 of the Labor Code of the Russian Federation establishes the following restrictions for the duration of the probationary period:

The standard duration is a maximum of 3 months.
For management employees – maximum 6 months.
If the employment contract is concluded for 2-6 months, a maximum of 2 weeks.

Taking into account these limits, a specific period is agreed upon by the parties and fixed in the executed employment agreement. At the same time, all norms of the Labor Code apply to the employee being inspected.

Persons who are not subject to employment testing are defined in Part 4 of Art. 70 of the Labor Code of the Russian Federation (we are talking, for example, about minors, pregnant women, transferred from another place of employment).

Thus, the employer must promptly and in writing notify the tested employee who is being dismissed due to failure to pass the assigned test.

In this case, all identified inconsistencies must be clearly reflected in an appropriate written act. The dismissed citizen must personally familiarize himself with this act, confirming this with his signature. On this basis, the employer writes a notice of termination of the employment contract and, 3 days before dismissal, delivers it to the person who has not passed the appointed check.

An important condition is that the notice addressed to the employee must set out the grounds and specific reasons for the upcoming dismissal.

In other words, the employer must justify his decision in writing, that is, indicate why he believes that the employee did not pass the probationary period. It should be noted that the legislation does not regulate specific grounds for this case.

As a rule, inappropriate test results are determined by the employer based on the following possible signs:

The employee did not fulfill the personal plan.
The employee violates the established deadlines for completing assigned tasks.
There is a formalized act confirming the person’s inadequacy for the position held (the work performed).
Various complaints and memos related to his professional activities have been repeatedly received against the individual.
There are explanatory notes drawn up by the employee himself to explain the unsatisfactory results of his work.

The unsatisfactory performance of a dismissed citizen during the probationary period can be confirmed not only by papers, but also by eyewitness testimony. However, documentary grounds are considered more convincing evidence. If the employer does not have supporting documentation, the fired employee can easily challenge his dismissal.

An employee can resign during the probationary period by submitting a letter of resignation of his own free will.

How many days notice is given to an employee?

If an employee is subject to dismissal for failing to complete the probationary period, the employer who initiated such dismissal must notify the employee in writing 3 days in advance (no later).

The three-day interval is calculated from the day when the dismissed citizen confirmed in writing that he had read this warning by placing a personal signature on this document.

If the employee does not agree with such a decision, he has the right to challenge it in court. Such rules are regulated by Part 1 of Art. 71 Labor Code of the Russian Federation.

It is necessary to clarify that the head of the employer’s company must provide the dismissed employee with an appropriate warning before the end of the appointed probationary period.

Part 3 art. 71 of the Labor Code of the Russian Federation stipulates that an employed employee is by default considered to have completed the probationary period if it has ended, and the employee actually continues to work for this employer. If a citizen continues to work after the end of the probationary period, he can no longer be fired for poor test results (such an employee can be fired only on general grounds).

We recommend reading: Is it possible to fire a pregnant woman during the trial period?

How to apply for an employee who has not completed the probationary period?

A written document informing an employee who has not passed the prescribed test of the upcoming dismissal can be drawn up by the employer without a strict framework. Such a notice must include a list of justifications confirming the incompetence of the dismissed person and his non-compliance with the established requirements.

The structure of a notice of dismissal may look like this:

Name of the employing organization.
Information about the head of the company (full name, position).
Information about the employee being warned (dismissed). You must indicate his full name, as well as his position.
The name of the document drawn up, reflecting its meaning (notification of dismissal), as well as its details (date, number).
Information about the employment contract previously concluded with the dismissed person (date of registration, registration number).
The fact of termination of the employment relationship with this employee, which must occur in 3 days (this period is counted from the moment of proper familiarization).
Link to the relevant legislative norms (clause 4, part 1, article 77 of the Labor Code of the Russian Federation, part 1, article 71 of the Labor Code of the Russian Federation).
List of justifications and reasons confirmed by acts and evidence. It is necessary to list specific indicators that indicate poor results of the assigned inspection.
Endorsement signature of the director.
Employee's introductory signature.
Company seal (if used).

to terminate an employment contract

Reasons for failure to complete the probationary period

It should be noted that during the probationary period, the employer can observe not only the employee’s professional skills, but also how he fits into the team, how much he likes corporate ethics and how willing he is to comply with it, and so on.

Among the main reasons why employees do not cope with the probationary period are:

incompetence of the employee - since everyone strives to look as good as possible at an interview and on a resume, employees often attribute to themselves qualities that they do not possess and skills that they do not possess. The probationary period provides an opportunity to test in practice all the qualities of the employee;
non-compliance with labor discipline - this includes lateness, violation of deadlines, non-compliance with the quality of work, and so on;
inability to fit into a team - even the most qualified specialist may not suit the company if he cannot interact with colleagues.

The reasons for dismissal can even be bad habits, for example, smoking in the workplace, if this is strictly prohibited by the rules of the enterprise.

Show 100% of what you are capable of

The first months in the company are like studying for college tests. First you earn a reputation, and then it works for you. Therefore, it’s worth doing your best during the probationary period.

If an employee feels too relaxed at the beginning of work in a new place, even if he attributes it to stress and getting used to the new rules, then, as a rule, after completing the probationary period he relaxes even more.

If you are really overwhelmed by a sea of information, unfamiliar people and procedures, responsibility and all other components of stress in a new place, then try to cope with them in the first third, or maximum half of the probationary period. Afterwards, you still need to get ready and fully engage in work.