The procedure for dismissal during the probationary period (nuances)

Can they be fired during the probationary period?

Often, when hiring a new employee, the terms of the contract specify a period during which his professional qualities can be identified and assessed.
This period of time helps the parties understand the feasibility of further relationships. The probationary period may vary in length depending on the position held. A probationary period is not provided for:

pregnant women;
women raising children under 1.5 years of age;
persons under 18 years of age;
graduates of educational institutions.

Employees under fixed-term contracts with a duration of no more than 2 months, as well as persons hired by transfer, and other citizens do not fall into this category (Article 70 of the Labor Code of the Russian Federation).

NOTE! The employer has the right not to require confirmation of the status of the persons listed above. Therefore, the employees themselves must present documents confirming this situation.

A probationary period is established only when hiring a new person. If there is a need to transfer an already working employee to another position, a probationary period is not provided.

The duration of the probationary period and other conditions should be specified in the employment contract, and also reflected in the order when hiring. Further changes to these conditions are permitted only by agreement of the parties.

For most employees, the duration of the probationary period is 3 months; at its discretion, the employer may limit it to a shorter period. For applicants for management positions, including chief accountants, the probationary period can be extended to 6 months. If the contract is concluded for a period of 2 to 6 months, the trial period lasts up to 2 weeks.

The reasons for dismissal during a probationary period may be the same as for termination of a contract in other situations. Moreover, in case of unsatisfactory performance of the hired employee, the employer has the right not to pay severance pay.

Find out about other dismissal options from the material “How to properly arrange leave followed by dismissal?”

For more information on how to make the final payment upon dismissal, see the material “Calculation of compensation for unused vacation under the Labor Code of the Russian Federation” .

Not only dismissal during a probationary period, but also dismissal of a missing employee has important features. And ConsultantPlus experts talk about them in detail. Get free demo access to K+ and go to the Ready Solution to find out all the details of this procedure.

Calculation procedure

If you are dismissed during probation, you will be paid the accrued earnings during your work, as well as compensation for vacation (if applicable). Considering the short period of work in the company (by law, the probationary period should not exceed 3-6 months), the amount of vacation pay is minimal. If the work in the company was less than 15 days, then such payment is not due at all.

The costs of paying sick leave may also be reimbursed. If the reason for dismissal during the probation period was a reduction in staff or the closure of the company, then the dismissed person may also be paid severance pay in the amount of average monthly earnings.

If the employment relationship is terminated due to failure of the test, the employee is not entitled to severance pay. All money for laid-off employees is paid on their last day of work, just like regular employees.

How to dismiss an employee during the probationary period and after it at the initiative of the employer?

Hiring an employee with a mandatory probationary period is accompanied not only by a record of this condition in the employment contract. It is necessary to draw up a list of requirements and tasks, the fulfillment of which is mandatory for further enrollment in the staff. Successful completion of the probationary period includes, among other things, the solution of all tasks assigned to the employee.

If an agreement was initially concluded with the employee, which does not stipulate the existence of a probationary period or there is no separate written agreement on this condition, termination of the agreement as dismissal during the probationary period can be easily contested.

Dismissal of an employee during a probationary period, committed at the initiative of the employer, must be accompanied by a warning to the employee about the upcoming fact 3 days in advance (Article 71 of the Labor Code of the Russian Federation). To do this, the employee is given a written notice containing the reasons for dismissal and the date of termination of the contract.

Determining the timing of the test has its own characteristics. This period is set in calendar days, including weekends and holidays. However, the absence of an employee from the workplace due to other situations, including illness and unknown reasons, is not included in the probationary period.

If the end of the probationary period falls on a non-working day, then the last day of performance of official duties in this status is considered to be the previous working day. That is, if the employer nevertheless decides to dismiss the employee during the probationary period, then the notice will need to be given in advance.

As soon as the probationary period comes to an end, the employee is considered accepted for the position, unless otherwise specified in the employment contract. The simplified dismissal procedure available to employers during a probationary period is no longer valid, and the employee is subject to the rules in force for ordinary employment.

Let's consider whether they can be fired if the employee fails to cope with the assigned obligations and the probationary period has not yet ended.

Reasons and confirmation

The fact of poor performance of one’s job duties must be proven and properly documented. Otherwise, failure to complete the probationary period can be challenged. If the employer believes that there is no point in continuing further cooperation with the employee, then he is obliged to draw up an appropriate act of violations or collect other evidence of his guilt (memos from his boss, written complaints from clients, etc.).

A violation during the probationary period is issued:

drawing up an act in the presence of several witnesses;
memos from the supervisor of the subject;
IP control logs;
written explanations from the employee about each problem at work.

A separate act is drawn up for each violation. The document may indicate, for example, that the person undergoing a probationary period fails to deliver work on time or systematically fails to cope with the responsibilities assigned to him.

In addition, materials bringing the subject to disciplinary liability (explanatory note, order, acts) can serve as confirmation of problems during IP. If an employee refuses to accept the statement of violations and sign, then a statement of refusal is drawn up. All these documents are very important in case the subject decides to appeal his dismissal.

If the conflict cannot be resolved and the employee continues to perform his or her job poorly, a dismissal order is issued.

Dismissal of an employee for failing to complete the probationary period

The employer has the right to terminate the contract with an employee who has failed to cope with his duties during the probationary period and has also shown himself to be unable to perform further work.

Dismissal during the probationary period can be carried out before the end of this period. The employer can terminate the contract with a new candidate at the very beginning of his work. However, the fact of non-compliance with the position held by the employee will have to be confirmed.

A selection of court decisions on confirmation by the employer of an unsatisfactory test result upon dismissal is given in the ConsultantPlus system. You can get a free trial and see the possible risks.

Before dismissing an employee who has not completed the probationary period , he should be given a notice of dismissal. To do this, the employer issues a notice of the upcoming termination of the employment contract. It must indicate the reasons why the employee was found to have failed the test.

A sample of such a notification was developed by ConsultantPlus experts. Get free trial access to the system and see how to prepare such a document.

The employee must be notified 3 days before the order is issued. This period, as well as the basis for terminating an employment contract with an employee who has not passed the test, is valid only during the probationary period. After this period, if management does not take any action towards the hired employee, it will no longer be possible to dismiss him under the same conditions.

The following periods do not apply to the probationary period:

vacation (including at your own expense, educational);
periods of incapacity;
periods of downtime in production if the employee is absent at this time with the knowledge of management;
suspension from work;
performance of state or public duties;
absence from work for unknown reasons.

You can read more about registering absenteeism from work in the article “How to properly register absenteeism for an employee under the Labor Code of the Russian Federation?”

Employee business trips are included in the probationary period. Moreover, based on the results of completing travel assignments, one can judge the employee’s suitability for the position held.

During the entire period of the employee’s probationary period, the employer will need to record the facts of completion or non-fulfillment of tasks, confirming everything with documents. If conflict situations arise, the employer, during dismissal during the probationary period, can, with the help of such documents, provide irrefutable arguments in favor of the employee’s incompetence.

Evidence of unsuccessful completion of the probationary period may include information from the following sources:

reports of unsatisfactory product quality;
memos and reports from immediate superiors and other employees about the unsatisfactory quality of work of the tested employee;
minutes of the meeting of the commission to discuss the results of the probationary period;
employee reports on the results of his activities.

If during the probationary period disciplinary measures were taken against the employee, then these facts can also serve as evidence of his inadequacy for the position held.

In addition, the tested employee must be familiarized with the internal regulations, job descriptions and other local regulations against receipt.

More detailed information about the responsibilities of HR employees at an enterprise can be found in the material “HR records management from scratch - step-by-step instructions.”

Reasons for failure to pass the IP

During the probationary period, the company and the employee make decisions for themselves whether to continue working or not. If the answer for the employer is negative, then it may be due to the low quality of the subject’s work, ignorance of the company’s labor discipline, customer dissatisfaction and many other reasons.

The easiest way to determine the reason for terminating the contract is if a log of the passage of the IP is kept or memos are constantly drawn up addressed to management, due to poor quality of work.

Results

If an employee has not completed the probationary period, every employer should know how to fire him without breaking the law. There may be slightly more grounds for dismissal during a probationary period than with the usual termination of a full-time employee’s contract at the initiative of the employer. However, the amount of payments may be less. The employee also has the right to quit if the new place and working conditions are not suitable for him, without undergoing mandatory work for a period of 2 weeks.

However, do not forget about the length of the probationary period, after which you will have to terminate the employment contract on a general basis.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

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.

When to remove an unsuitable employee from a position

A contract with a worker can be terminated at any time: both at the beginning and at the end of the probationary period. As soon as his incompetence is visible. And the employer’s inaction after the completion of the trial period will automatically confirm the employee’s successful completion of the test. Therefore, the worker cannot be dismissed after the end of the trial as having failed to complete the probationary period.

If he was absent from work due to illness, leave without pay, study leave, suspension from work, then the test is extended for the corresponding number of days of incapacity. Downtime at work due to the employer's fault is also not included in the probationary period. And business trips and business trips (Part 1 of Article 166 of the Labor Code of the Russian Federation) are counted towards the test.

Unlawful dismissal during a probationary inspection is considered:

if neither party terminated the contract after completion of the test;
if before the end of the inspection the employee was transferred to a higher position.

Reasons for test failure

If the person being tested has not passed the probationary period at work, then the company can legally say goodbye to her long before the end of the test. The negative result of the test is the discrepancy between the qualifications of the newly minted worker and the assigned work in accordance with the job characteristics. A negative test result is a legal basis for terminating the contract without the employee’s consent.

Difficulties with new personnel may arise not only from the employees themselves, but also from their immediate supervisors. Sometimes a person does not complete the probationary period due to the incompetence or bad attitude (personal hostility) of the manager. Therefore, it is necessary to consider the dilemma with new personnel not only when selecting personnel, but also when adapting them to the team.

At the same time, cases of subordinates’ refusal to leave work “of their own free will” have become more frequent. In such cases, you have to resort to dismissal under the article.

Handing over a work book

The final part of the dismissal procedure is filling out the work book. Entries in this document must be numbered and made strictly in their own sections. The reasons for termination of the contract must be indicated (for example, the probationary period has not been completed with reference to Article 71 of the Labor Code of the Russian Federation), details of the order, the company’s seal, the signature of the personnel officer and the employee himself are required.

An entry in the employment record upon dismissal can be formulated not only as a failure to pass the IP (“dismissed due to an unsatisfactory test result”), but also as a dismissal of one’s own free will, by agreement of the parties, or for another reason. The wording specified in the work book must completely coincide with that specified in the director’s order.

The work record book is handed over to the dismissed person against his signature in the personal card and in the book recording the movement of work records and inserts in them. If the employee is absent on the day of dismissal, he is sent a notification by registered mail about the need to collect the work and the money due. Thus, the employer relieves himself of responsibility for failure to issue a work permit, which threatens him with fines and problems with inspection authorities.

Undesirable consequence

Dismissal as someone who has not completed the probationary period must be carried out in accordance with the law. Because a dissatisfied employee suspended from work has the opportunity to appeal this in court.

If the employer is not completely convinced of the sufficiency of evidence that will confirm the negative outcome of the test, it is better to choose a different course of action. Eg:

terminate the contract due to repeated failure to fulfill official duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
dismiss by agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

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.

Payments

To ensure that no violation of labor laws is detected, a dismissed employee who does not pass the test is also entitled to payments upon settlement. These include:

wages for the period of time worked (it should not be deliberately reduced);
compensation for unused vacation (these payments are made only if the employee has worked for at least 15 days).

All payments due to a citizen must be paid no later than the next day after dismissal.

Deadlines

According to the general rules, when dismissing at the initiative of an employee, the employer may require 14 days of work. If dismissal occurs during probation, this period is significantly shortened. Firstly, the manager is required to notify the employee three days in advance of the upcoming dismissal. Secondly, he must personally deliver a notice of failure to complete the probationary period (a sample document is presented below).

By agreement of the parties, the employee may resign on the same day on which he received the notice.

Employer's liability

If during the probationary period an employee is fired without explaining the reasons and drawing up a report of violations, then he has the right to appeal the employer’s actions in court within a month. After going to court, you can be reinstated at work or change the wording of your dismissal and demand compensation for moral damages.

Dismissal may be considered illegal if:

there is no mention of IP in the employment contract;
the company issued a hiring order without specifying the IP;
the employee was fired while on sick leave or maternity leave;
the test is established for those categories of workers for whom it is not provided;
the employer did not justify in any way the failure to pass the IP.

For legal dismissal, there must be an order for employment with an IP and confirmation of failure to pass the test - acts, complaints, memos, etc. (read about whether it is possible to work for an IP without a contract here). All this can easily be presented in court if the matter comes to a legal dispute.

Employers are subject to administrative liability for violation of labor and labor protection legislation (Article 5.27 of the Administrative Code), including illegal dismissal. Officials face a fine of 1-5 thousand rubles, and for individual entrepreneurs they also face administrative suspension of activities for up to 90 days. The fine for companies can be up to 50 thousand rubles.