The issues of employment, on the one hand, and the lack of qualified personnel, on the other hand, remain relevant at any time. There are effective measures that allow the employer, without violating the Labor Code of the Russian Federation, to reduce the risk of hiring an incompetent employee.
How legitimate is setting up a trial period?
The term “trial period” is a full-time working period when an employee fulfills his obligations in accordance with the Labor Code of the Russian Federation. The ability to grant the director the right to accept a specialist with a probationary period of work is an advantage for both parties, allowing him to make a final decision in the process of interaction.
The rules and conditions for registration of employees for the period of the trial period are strictly determined by the legislation of the Labor Code of the Russian Federation: article 70 regulates the conditions and rules for conducting the test upon taking up a position, article 71 reflects the rationale for deciding on the basis of verification. According to the law, the manager has the right to accept a position with the test of any potential employee (see cases regulated by the Labor Code). The beginning of the trial period is considered the first working day. If a specialist has already begun working in this organization, it is unlawful to apply these articles. Every competent boss should understand at the legislative level how to fire an employee who has not passed a probationary period, and what nuances and subtleties exist in this matter.
Can all categories of citizens be accepted on probation?
In the framework of the Labor Code of the Russian Federation, a number of citizens have been identified to whom the application of the test when applying for a job is impossible. These categories of socially vulnerable citizens include:
- women in position or raising children whose age has not reached 1.5 years;
- minors;
- persons without work experience who have graduated from a secondary vocational or higher education institution accredited in state bodies (no more than a year ago), who are accepted for a position in the specialty;
- in the case when the term of the employment contract is less than two months;
- invited employees drawn up by transfer from another place of work as agreed by the parties;
- persons accepted on the basis of a previously concluded employment contract with the head and educational institution where the potential employee was trained (Article 207 of the Labor Code of the Russian Federation).
If the head of the organization decides with respect to the above-mentioned persons to establish a trial period at the conclusion of the contract or a dismissal order is created at the end of the trial period, his actions fall under the article of the administrative code of the Russian Federation.
What are the main conditions for implementing the law?
The employer is imposed obligations to conclude an employment contract with a potential employee. As part of this document, a clause on the conditions for hiring an employee with a probationary period is prescribed. In addition to this, an order is created where these points are also indicated. However, the main document confirming the legality of the decisions made is an employment contract, but not an order.
Conditions for an employee on a probationary period when hiring shall not be specified orally. In the absence of relevant entries in the labor agreement, the actions of Articles 70.71 of the Labor Code of the Russian Federation cannot be applied to an employee .
The duty of the head, on the basis of part 3 of article 68 of the Labor Code of the Russian Federation, also includes timely familiarization of the employee with the rules and regulations established within the organization, including regarding the internal routine, the position and charter of the institution, and the list of official functions of the specialist.
Is there a test deadline?
Within the framework of Articles 70, 71 of the Labor Code of the Russian Federation, the procedure and dates for the trial period are clearly stated. On the basis of the regulatory document concluded between both parties, the dates for passing the test are established. According to the law, in general, when hiring, the maximum duration of a probationary period cannot be more than 3 months (with the exception of certain situations specified in the legislation), and for applicants for the position of leader — no more than 6 months.
For a short-term contract, the term of which is from 2 to 6 months, a trial period of no more than two weeks is set for the employee.
To determine when this time ends, there are also a number of rules that must be taken into account. In accordance with the requirements, days during the test period when the employee is absent are not counted. Reasons for absenteeism may include:
- pass due to illness;
- vacation during study;
- leave without pay;
- downtime agreed with the manager;
- no admission or suspension;
- omissions without good reason, absenteeism.
The probationary period is extended by the number of unfinished days.
How are test results evaluated?
An employment contract drawn up for a probationary period when applying for a job imposes on the employee exactly the same duties and responsibilities to the employer as the general agreement. The subject is required to comply with the rules and regulations in force within the organization and to fulfill his direct obligations specified in the official normative documents.
Responsibilities for monitoring the employee and monitoring the quality of the activities performed by him can be assigned to both the employer himself and his assistants or deputies. Sometimes a curator or mentor is assigned to the subject. Based on the expert opinion, the manager has the right to dismiss the employee as not having passed the probationary period, and to enroll him in the staff.
Evaluation of the quality of work performed can come not only from the final results, but in most cases consist of many factors, including:
- the ability to quickly learn, master new skills;
- responsible approach to the performance of official functions;
- adequacy in the perception of criticism and timely correction of shortcomings;
- following the rules of the internal regime;
- the presence of such qualities as sociability, the ability to work in a group, stress resistance, etc.
Given all of the above factors, the test results can be both satisfactory and unsatisfactory. Often a decision is made after the first two weeks of cooperation. Accordingly, further the employer already in writing summarizes his conclusions regarding the subject and notifies him of the results of the audit.
Before an employee who has not passed the probationary period, the employer must fulfill all his obligations in accordance with the norms of the Labor Code of the Russian Federation.
Does the employee need to work out on a trial period?
Often in a labor relationship, situations arise when the subject does not want to continue cooperation for any reason. What should he do in this case and should he work out on a trial period? In the case of incompetence or dishonesty of the managers, the failed employee is not explained his rights. Often, employees' ignorance of the laws leads to the fact that they are illegally obliged to work out more than the prescribed period.
Working out means the period of time from the moment of notification of the termination of the agreement to the actual completion of the fulfillment of their professional obligations.
A potential employee, at his own request, at any time during the test may inform the employer of the unwillingness to continue cooperation. Such a decision must be made in writing, no later than 3 days before the expected date of dismissal.
Issues of the need to work out when passing the test are strictly regulated by article 71 of the Labor Code of the Russian Federation, which clearly spells out the developmental periods of three days. While in the main mode, this period is equal to two weeks.
In the case of agreements between the parties, the dismissal is possible without completion of work. The decision is drawn up as an annex to the contract.
Is employee dismissal earlier than the established trial period allowed?
The employer himself can also use the right to terminate the contract by documenting the employee about it no later than three days before it is terminated. Is it possible to fire an employee who has not passed a probationary period by law?
According to the law, if the employee does not comply with the work performed, the manager has the right to terminate cooperation until the end of the trial period. The employer is obliged to inform about his decision in advance (no later than 3 days) in writing. The reasons for termination of the contract are indicated in the notice. It is an official document confirming the fact that the employee did not pass the test. The employee has the right to appeal the decision in court.
In the event that the employee did not pass the probationary period, but is not dismissed before the end of the trial, the subsequent termination of the agreement due to non-compliance will be unlawful.
According to the law, the termination of the contract at the initiative of the director can be carried out at any period of time.
How to document the dismissal of an employee who has not passed a trial period?
If you asked the question of dismissal, then we advise you to do everything according to the law. So, how to fire an employee who has not passed a probationary period? In the event that the employee has not passed the verification, the employer must verify the correctness and legality of the actions taken in the future. It is possible to dismiss an employee as not having passed the probationary period only on the basis of documented facts. This kind of grounds include the following:
- employer memos on poor performance of duties, with acts confirming this opinion;
- employee profile
- test logbook;
- minutes of the expert group meeting;
- notification of unsatisfactory test results;
- explanatory from the employee about the reasons for poor-quality execution of instructions;
- complaints from the team;
- the presence of orders for disciplinary offenses by the subject.
In the event that the employee does not agree with the decision, he may appeal it in court. All of the above documents will be legitimate in justifying and confirming the position of the manager.
Termination of the employment agreement with negative results of the inspection is carried out without taking into account the decision of the trade union committee.
When the verification period expires and the contract is not terminated, the person shall be recognized as having passed the test. Further termination of the contract is lawful only on general grounds.
Is salary paid to the employee during the trial period?
After three days from the date the employee receives the notification, a dismissal order is created. On the day of termination of the employment agreement, the manager is obliged to make a full calculation of the employee, which consists of the following payments:
- payment for working days;
- Compensation for unused vacation days.
According to part 2 of Article 71 of the Labor Code of the Russian Federation, severance pay is not provided for by law in this case.
Also on the same day the employee is given personally in the hands of his labor, in which the corresponding entry is made. In the absence of an employee on the day of dismissal due to any circumstances, the manager is obliged to inform in writing about the need to get a job on hand. At the place of residence of the employee, a letter is sent asking him to come in person. The notification sent is a fact confirming the validity of the delay in issuing the document.
Are there guarantees for protecting the rights of workers?
On the part of the state, within the framework of the legal field of the Russian Federation, compulsory guarantees of the rights of the employee are provided during the passage of the test. Sometimes heads of organizations, abusing their official status, violate the norms established by the Labor Code of the Russian Federation.
In order to protect citizens, especially from socially vulnerable groups, all the requirements and rules necessary for this period are prescribed at the legislative level. These include:
- explanation of the test procedure;
- the list of persons for whom the trial period is not provided is indicated;
- maximum time limits for passing the inspection are regulated;
- a clear reflection of the conditions under which the process is carried out.
According to the law, the person with whom the labor document was signed with the test has the same rights as employees working on a common basis.
The notice of failure to pass the inspection should be given to the employee only in a documented form and no later than three days before the alleged dismissal.
Familiarization of the employee with any decisions of the head is carried out under signature. When the subject does not agree with the conclusion of the leadership, he has the right not to put a signature and apply to the Labor Commission or to the court.
In case of unwillingness to continue working in the organization, the employee may terminate the labor agreement on his own initiative.
In this article, we explained how to fire an employee who has not passed a probationary period, that this is possible only with strict observance of all the norms and requirements of the legislation of the Russian Federation. Any inconsistency with the letter of the law entails legal action by the competent authorities.