When a new employee joins a company, the administration may assign a probationary period upon hiring to test his knowledge and skills. At the specified time, the responsible person monitors the execution of instructions and records both achievements and shortcomings in the work. If the administration understands that the newcomer is not suitable for this position, it can fire him. But first he needs to give notice of failure to complete the probationary period.
Who is not eligible for the test?
Despite the fact that during the probationary period the employee is subject to the provisions of labor legislation, collective agreements, agreements, and local regulations of the employer, it is not always possible to establish a probationary period. Thus, a test is not established, in particular, for (Part 4 of Article 70 of the Labor Code of the Russian Federation):
- pregnant women and women with children under 1.5 years of age;
- persons under the age of 18;
- persons who have received secondary vocational or higher education in state-accredited educational programs and who first enter work in their specialty within 1 year from the date of receipt of the relevant education;
- persons invited to work as a transfer from another employer;
- persons concluding an employment contract for a period of up to 2 months.
Dismissal of someone who has not passed the probationary period
job description; internal labor regulations; local regulations affecting the employee’s field of activity; The order of acceptance to work. Make sure that all these documents are approved by your company. They can be developed by a lawyer together with personnel department employees.
——————————————————————————— How to reduce your salary and not break the law If you still don’t want to overpay a newcomer, proceed as follows. In the employment contract, indicate the amount of remuneration that you will pay during the probationary period. And upon completion, instruct the personnel service to prepare an addition to the specialist’s employment contract indicating the amount you plan to pay in the future. If disagreements arise, your position will be winning: the company did not lower wages during the probationary period; on the contrary, after the end of this period you decided to increase the amount of remuneration.
Test period
The probationary period in general should be no more than 3 months (Part 5 of Article 70 of the Labor Code of the Russian Federation). And when concluding an employment contract for a period of 2 to 6 months, the trial cannot exceed 2 weeks (Part 6 of Article 70 of the Labor Code of the Russian Federation).
An extended probationary period may be established for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations. For such employees, the probationary period can be up to 6 months.
Notice of failure to complete the probationary period (sample)
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We formalize the test result
When it comes to recording the test results, it means that the employee did not pass the test. After all, upon successful completion of the probationary period, the preparation of any documents is not required. An employee who has passed the test simply continues to work at the end of the test (Part 3 of Article 71 of the Labor Code of the Russian Federation).
But if the test results are unsatisfactory, the employer has the right to terminate the employment contract with the employee before the end of the probationary period without paying severance pay, notifying the employee of the dismissal no later than 3 days before the dismissal. The warning must be in writing. It must indicate the reasons why the employee was found to have failed the test (Parts 1, 2, Article 71 of the Labor Code of the Russian Federation). Such reasons are initially indicated in the conclusion, which is drawn up if the test result is unsatisfactory. Thus, the conclusion based on the test results is both the basis for the subsequent issuance of a warning about the dismissal of the employee, and confirmation of the validity of the dismissal of the employee under Part 1 of Art. 71 Labor Code of the Russian Federation. The conclusion is drawn up by the person responsible for the employee’s completion of the probationary period (usually the employee’s immediate supervisor), or even a commission specially created for this purpose. It is advisable to familiarize the employee with the conclusion against signature.
To provide a conclusion on the results of the employee’s test, we provide a sample of its completion.
Articles on the topic
The report indicates the reasons that served as the basis for recognizing the employee as having failed the test.
How to place an order?
An order to dismiss an employee can be drawn up using the unified form No. T-8. It indicates the reason for dismissal and the date. The employee must be familiarized with this document against signature, and if he refuses to sign, a statement of refusal must be drawn up.
To correctly compose an order you must:
- indicate the name and details of the company;
- personal data, employee position;
- indicate the number of the employment contract, the date of conclusion (if drawn up in writing);
- enter the order number, the date of its preparation;
- clearly indicate the reason for dismissal with reference to the Labor Code of the Russian Federation;
- sign and seal the company.
The date of drawing up the document should not be later than the last day of the test (these are the requirements of the Labor Code of the Russian Federation). Since 2015, the presence of a seal in the dismissal order is not mandatory for companies created in the form of a joint stock company or LLC. An order cannot be issued if the employee has asked to take sick leave. It is necessary to wait until the sick leave is closed and first hand in the notice of dismissal, and then the management order.
What must be in the document
The memorandum must indicate specific grounds (reasons) proving that the employee cannot cope with his job responsibilities.
In addition, the following should be attached to the report:
– written tasks completed by the employee with errors (for example, incorrectly executed documents);
– written requests from the manager about the reasons for the delay in completing the work;
– an explanatory note from the employee regarding delays, etc.
As we can see, it’s safer to stock up on evidence that an employee can’t do his job in advance. If not from the very beginning of the probationary period, then at least from the moment when management began to have doubts about the competence of the new employee. And the more such evidence, the better.
from the head of the sales department
To the head of the HR department Sergeeva S.S.:
draw up documents for dismissal
Ivanov Ivanov I.I.
REPORT
About the improper performance of labor duties by Mikhailov M.M.
I notify you that sales department manager Mikhailov M.M. performs his job duties improperly. According to the individual work plan (attached), he was supposed to conclude 30 new contracts in the period from January 1, 2012 to January 31, 2012. However, according to data as of February 1, 2012, he concluded only 5 contracts, from which it follows that the individual plan of Mikhailov M.M. does not fulfill.
In addition, Mikhailov M.M. was repeatedly spotted during working hours on the Internet on sites that were in no way related to work. Also Mikhailov M.M. was late for work twice without good reason (his explanatory notes are attached).
Considering that Mikhailov M.M. is on a three-month probationary period (expires February 29, 2012), I believe that, taking into account the above, the test result should be considered unsatisfactory.
Sample letter of dismissal for failure to complete the probationary period
After the pension is assigned, it is only necessary to change the additional amount of DNA. The reason for the employer may be brought to administrative liability under Part 1 of Art. 14.1 Code of Administrative Offenses of the Russian Federation (Part 1 of Article 16 158 of the Criminal Code of the Russian Federation) Sincerely. email mail.
As part of the consultation, a question is answered, rather than a sample is sent. There is a lot of such rubbish on the internet. Drawing up any documents, remote assistance, representation of interests in courts, including those from other cities. In personal mail, by phone, answers are paid.
Causes
There are three main reasons why an employee may “fail” the probationary period:
- Inconsistency between the employee’s qualifications and the functionality performed. The most common reason, the roots of which lie in an incorrect assessment of the candidate during an interview.
- “Didn’t fit in” with the team. One of the most “slippery” reasons because it is the most difficult to measure. Sometimes it happens that an employee does not fit into the existing corporate culture of the company, does not support certain moral values, behaves differently from what is customary in this particular organization, etc.
- Violation of labor discipline. According to statistics, one of the rarest reasons for dismissals is during the probationary period. As a rule, adequate employees do not allow themselves to commit gross violations of discipline, and most often such a reason “covers up” the true one - professional incompetence, which is simply much more difficult to prove in fact.
Each of the listed reasons must be documented and justified.
In an ideal situation, in order to determine whether an employee successfully passes the probationary period or not, it is necessary to determine the criteria for success at the time of signing the employment contract.
In Russian companies, KPIs (key performance parameters) are quite rarely formed “at the entrance” to the company, and yet they could serve as excellent assessment tools.
Is it possible to terminate the relationship after the end of IP?
The employer has the right to terminate the relationship with the subject at any time before the expiration of his inspection period. To do this, there is no need to request the opinion of the trade union; management’s initiative is sufficient. However, if this period has already expired, then it is impossible to dismiss him on the basis of failure to pass the test.
It is considered that if the deadline has passed and the employer does not make any claims against the employee, then the hiring test has already been passed. Dismissal in this case is possible on other grounds, for example, by agreement of the parties, in connection with violation of labor discipline, etc.
A probationary period is now assigned in many companies, so it is very important to know how to correctly formalize it in a fixed-term and permanent employment contract. And you can find all the necessary information about this on our portal.
Who makes the decision?
During the probationary period, the final decision to dismiss an employee who fails the test is made by his line manager, but it is formed, as a rule, on the basis of collected feedback from colleagues working closely with the new employee.
Thus, the decision may be influenced by: HR department employees supervising the probationary period, line colleagues, project team members, department head, employee’s subordinates, etc.
A separate category includes the process of dismissal during the probationary period of the general director. In this case, the decision is made by the board of directors, the owner of the company, the managing partner or another body with the necessary rights.
Dismissal procedure
The algorithm for dismissing someone who has not completed the probationary period is as follows:
- The employee is notified 3 business days before the expected date of termination of the contract.
- A dismissal order is issued.
- An entry is made in the work book and the final payment is made.
When should you decide?
This coin has two sides:
- on the one hand, the employer is interested in assessing as soon as possible whether the employee is suitable for the position held or not, since he spends resources on his personal and professional adaptation;
- on the other hand, everyone has a different speed of adaptation and it is possible that the employer, in a hurry, will make the wrong decision, a little before waiting for the employee’s potential to be revealed, and he will again suffer losses.
There is a way to minimize risks . The secret is careful planning of the adaptation process and the development of stage-by-stage patterns of success. The clearer the employer himself understands what he wants from an employee, the higher the likelihood of relevantly assessing his results:
- Divide the probationary period into stages;
- Write down tasks and goals for each stage;
- Think over a system for assessing each stage;
- Collect feedback wisely.
Technically, the company has the right to make a decision on whether an employee fails to complete the probationary period at any time.
Enter the site
Considering the fact that the contract dated 03/20/2021 (No. w/n) was concluded with you on the basis of a preliminary test, we inform you that on 05/06/2021 the employment relationship concluded with you under the terms of the contract will be terminated on the basis of Art. 29 of the Labor Code of the Republic of Belarus - in connection with the termination of an employment contract with preliminary testing.
By the day of dismissal (last day of work), we ask you to endorse the work slip and appear on 05/06/2021 at the HR department for your work book and at the accounting department for the final payment of wages and other payments.
Employer risks
Even if everything is done as competently as possible, there is always a risk that the offended employee will go to court to challenge the reasons for not completing the probationary period. In order to be confident in a positive outcome of the case, the employer must reduce all possible risks to a minimum.
Common mistakes
- untimely notice of dismissal;
- the absence in the employment contract of a stated clause on assigning a probationary period to the employee;
- insufficient justification of the reasons;
- lack of familiarization with the job description at the time of signing the employment contract.
Arbitrage practice
Labor legislation does not regulate a specific list of documents required to justify dismissal due to the employee’s failure to complete the probationary period, as a result of which each case is considered individually to determine the sufficiency of the evidence presented.
A court that finds such a dismissal unlawful may oblige the company to reinstate the employee to his previous position and pay compensation:
- Wages for the period of forced work downtime;
- Compensation for legal costs;
- Compensation for moral damage.
Sample letter of dismissal for failure to complete the probationary period
In order for the dismissal to be lawful, during the probationary period the employer is obliged to periodically issue control tasks to the employee, evaluate them and record the interim results of the employee’s work. These may be acts on the release of defective products, poor quality work, explanatory notes from the employee, reports, memos from the immediate superior about the employee’s violation of the job description or employment contract, orders to impose penalties.
In practice, the employee is usually notified of dismissal in person and signs a copy of the notice. The second copy of the document remains with the employer. On it, the dismissed employee must write: “Notice of dismissal based on the results of the probationary period has been served,” sign and date it. If the employee refuses to sign the notice, you can proceed as follows.
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Useful video
Watch the video about the reasons for failure to complete the probationary period and how the fact of improper performance of functional duties is established:
According to Russian judicial statistics at the moment, the vast majority of cases considered are decided in favor of dismissed employees, which suggests that employers, wittingly or unwittingly, continue to make mistakes when completing the dismissal procedure during the probationary period.
Sep 10, 2019adminlawsexp
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Notification of an employee’s failure to complete the probationary period - how to draw it up correctly
The HR department issues the notice, after which it is handed to the employee. This document must be in written form. The form is drawn up in two copies, one of them is given to the person being dismissed, and on the second he must put a mark of receipt. If he refuses to sign the form, then you need to call at least two witnesses and draw up the appropriate document.
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Sometimes employees, when they hear that they are going to be fired due to failure to pass the test, ask for dismissal during a probationary period at the initiative of the employee. In this case, a negative entry about non-compliance with work requirements will not be entered into their employment record.
Sample notice of failure to complete the probationary period
If there are no complaints against the employee during the probationary period, he continues his work in his position, maintaining his official salary, while it is possible to increase his salary on an individual basis. However, what should a manager do if, during the trial, an employee demonstrated business or personal qualities that are incompatible with his position?
- processing a certain number of orders within a specified period (for example, 10 orders per day);
- answers to telephone requests from counterparties (for example, at least 20 per day);
- absence of complaints from clients (for example, up to 5 complaints within a month).
Sample order to complete a probationary period
Please note that the probationary period can be full or shortened, depending on the type of cooperation. For a permanent test, the test lasts from three to six months, and for a temporary test, up to two weeks. The main text of the document is something like this.
If a subordinate was absent during the probationary period, even for a valid reason, these days are not taken into account. The HR specialist automatically formalizes the extension of the term in administrative documents. It is important to comply with two conditions:
Notification of failure to complete the probationary period sample
It is mistakenly believed that termination of an employment contract on the basis of a failed test is just a formality, that it is simply necessary to notify the employee of the upcoming dismissal three days in advance. In fact, the employer’s responsibilities include not only compliance with the dismissal procedure itself, but also documentary evidence of the reasons that served as the reason for terminating the employment relationship.
During the work process, in the event of errors occurring, the employee must be offered, against signature, orders (instructions) on the application of disciplinary measures against him, comments, memos from the manager about non-compliance with the job description, reports on unsatisfactory performance of work.
Order on failure to complete the probationary period sample
However, it has already become known what mistakes policyholders make especially often when filling out reports. The Federal Tax Service has edited the control ratios of VAT declaration indicators. This is due to the entry into force of the order amending the VAT reporting form.
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A probationary period when hiring is now not uncommon. This is done in order to determine how suitable the employee is for the position for which he was hired. But situations often arise when, even after a preliminary test, the manager cannot make a decision regarding a new subordinate. And he has a very reasonable question regarding when the extension of the probationary period is used.
