The current labor code provides for the employer to set a probationary period for a newly hired employee. In practice, there are often cases where the employer cannot decide to accept an employee on an ongoing basis, or vice versa, wants to quickly recruit a person into the staff. And immediately the question arises: "How to carry out the cancellation and extension of the probationary period according to the documents?"
Legislative framework
Article 70 of the Labor Code provides that the employer, by prior agreement with the applicant, may establish a probationary period for him. And this is not an obligation, but the right of the administration of the enterprise. Although in practice, everything happens in a completely different way: most employers seek to establish the longest probationary period, because during this period you can pay a lower wage.
The employer must necessarily conclude an employment contract with the employee for the period of admission with a probationary period, which will reflect the period of this period, wages.
Salary
Along with the issue of extending the probationary period, another often arises: “How to pay for this period?” Almost all employers are of the opinion that in this case, wages should be lower compared to the wages of long-working specialists. However, experts in the field of labor law recommend that this be indicated in the staff list. If an employee receives less for his labor during the probationary period, this is a direct violation of his rights. Therefore, in the staff list or order to it should be indicated that labor on a trial period is paid in a smaller amount. At the same time, the newly hired employee should not be denied the payment of bonuses, sick leave, in other words, he is a full member of the team and has all the rights and obligations, like the rest of the employees.
The timing
Article 70 of the TC outlines the deadlines for the trial period:
- up to 6 months for management positions (managers, chief accountants and their deputies);
- up to 3 months for all other posts;
- no more than 2 weeks, if it is a fixed-term employment contract, which is concluded for 2-6 months.
If the newly hired employee during this period fell ill or was absent from work for other valid reasons, then this period is calculated from the probationary period.
Who should not be assigned a trial period?
However, there are cases when the question of extending the probationary period cannot even be raised, since it is impossible to apply a probationary period to some categories of employees:
- to women during the period of bearing a child;
- if the position is received as a result of the competition;
- to persons who have not yet reached the age of majority;
- if the work is received as a result of the transfer;
- to elected posts;
- to women who have children under the age of three years;
- if the employment contract is concluded for a short period, up to 2 months.
The employer has the right to expand the list of cases and positions to which the probationary period will not apply, fixing these provisions in a collective agreement or other local acts of the enterprise.
Reporting the result
If the employee has justified the trust of the employer and passed the probationary period, then no documentary evidence is required for this fact. If, on the basis of the results of the trial period, the enterprise administration decided not to continue cooperation with the employee, then he should be notified of the forthcoming dismissal in 3 days. In this case, the employee must explain the reasons for dismissal.
Trial extension
Relatively speaking, such a formulation in labor legislation does not exist at all, as, however, there is no concept of “shortening the probationary period”. At the same time, in practice it is often impossible to decide on the final hiring of an employee. And what if the legislation does not provide for such a procedure? After extending the term, the employer actually violates the position of the employee, that is, such actions are considered critical.
In addition, if the labor inspectorate becomes aware of such a fact, it may hold the company officials administratively liable.
Two points of view
Around the extension of the probationary period there are a lot of disputes among specialists in the field of labor law.
The Federal Labor Service is unambiguous in its opinion: the probationary period cannot be extended, since it significantly worsens the position of the person received. Extension of time is possible only in cases when it is directly established by federal law. For example, the conditions for the extension and reduction of the probationary period are provided for in the law “On the Prosecutor's Office”.
Practicing lawyers have a different opinion and insist that the employee’s consent may be the basis for extending the probationary period. In this case, one should rely on Article 72, which stipulates that the parties to the employment contract are entitled to change the terms of the contract by signing an additional agreement. The main thing is to prevent exceeding the deadline, and no violations by the employer will be seen.
Renewal order
So that the inspectors have fewer questions for the employer, it is recommended to draw up an order and familiarize the employee with it. An order is better to draw up, even if the period is extended due to illness or other valid reasons.
The order (sample) of the extension of the trial period must contain the following details:
- Name of the enterprise where the order is issued.
- Name, number, place and date of preparation of the document.
- In the justifying part, the reasons for the absence of the employee at the workplace should be indicated. For example, "due to temporary disability" or "due to the downtime of the enterprise."
- After the phrase “I order”, it describes how many days the trial period is extended, to what date.
It should be remembered that the holidays are not extended. For example, if a person has been ill for 4 days, and the fifth is a public holiday, then this day is not taken into account in the extension period.
At the end of the order, before the signature of the head, it is recommended to indicate a list of documents that give reason to extend the term, for example, sick leave.
It is recommended to register all the details described above in the order to extend the probationary period. After the director’s signature, the employee must be signed, regarding which an order is drawn up.
Dismissal
Along with the procedure for extending the probationary period, the employer is given the opportunity to dismiss the employee with the wording: “as if the probationary period had not passed”. However, there are many reservations.
First of all, you can dismiss only before the end of the probationary period. Simply put, if the term ended on October 31, and the employee continues to work on November 1, then he cannot be fired with this wording, only until October 31.
The employer will also have to prove that the employee did not cope with his duties during the probationary period. This may be acts on the release of defective products or reports on the performance of a specific work, violation of labor discipline, other facts that were recorded in writing.
The administration of the enterprise should understand that the illegally dismissed employee has the right to appeal to the labor inspectorate and the court to protect his rights.
Due to the fact that there are many radically different points of view on the extension of the probationary period at the initiative of the employer, they are recommended to initially set the maximum period for newly hired employees, to fix all violations (if any) and shortcomings.