The probationary period when applying for a job is all that a job seeker needs to know. Step-by-step instructions for dismissing an employee who has not passed the test and a sample notification of failure to pass the test. How to dismiss an employee, documents required for dismissal

The current labor code gives the employer the opportunity to take a closer look at a new employee, to check him in action. This check is called probation". Indeed, it is sometimes difficult to be confident in a person, relying only on his documents on education and entries in the work book. In addition, each workplace has its own specifics, and the successful performance of duties in one organization does not guarantee that the employee will also be successful in a new workplace.

Meanwhile, it is not so easy to fire an employee who has already been hired. The Labor Code protects the interests of the employee, and without serious violations on his part, it becomes difficult to replace a far from the best candidate. This is where the probationary period comes to the rescue of the employer.

The fact is that while the probationary period lasts, it is possible to dismiss an employee simply because he does not do his job well enough. But so that subsequently the employer does not have problems with labor inspectorate so that a negligent employee cannot challenge the dismissal in court, it is necessary to take seriously the execution of documents for hiring with a probationary period and the dismissal of an employee who has not passed the test.

If the probationary period was not documented and the terms of dismissal

In order for the employer to have the opportunity to dismiss an employee who has not passed the test, the probationary period must be fixed in the employment contract with the employee and in the order for his employment. In Art. 70 Labor Code The Russian Federation also describes the method of registration of the probationary period in the form of an agreement that must be signed by the employee before starting work.

Thus, if the employee actually started work without signing an employment contract or agreement, this means that the employer hired him without passing the probationary period.

In addition, the law establishes a number of categories of workers for whom no probationary period can be established at all.

An employee who has not passed the test can be fired during the entire probationary period on any day. If, at the end of his probationary period, the employee has not received notice of the upcoming dismissal, then he is considered to have successfully passed the probationary period, and subsequently he can only be dismissed on a general basis.

It should be noted that during the probationary period, the employee can take sick leave, leave (with or without pay), time off, may be absent from the workplace due to downtime, exclusion from work or suspension from work, perform public or state duties, may, finally, skip ...

Here the employer needs to know that The probationary period includes only actual hours worked. that is, the probationary period is extended by the number of days during which the employee was not present at the workplace for a good or bad reason.

How to justify?

There is a misconception among employers that during the entire probationary period it is permissible to simply dismiss the employee without giving any reason, simply because it "didn't fit". This is completely wrong, and this action can be protested by the employee in court, and the employee himself, by a court decision, can be reinstated in his workplace.

To avoid such problems, it is necessary to prepare thoroughly for the possible dismissal of employees who have not passed the probationary period. The following documents can serve as confirmation of the legality of the dismissal:

• memorandums of the immediate supervisor;
• acts on the release of low-quality products;
• complaints from colleagues and clients;
• explanatory notes of the employee on the facts of non-fulfillment of tasks or violation of the rules of labor discipline;
• various disciplinary actions;
• reviews, characteristics of managers, mentors responsible for passing the probationary period.

Naturally, it is absolutely not necessary to have all of the above documents, but it is desirable to prepare at least a few such evidence of dishonest or unskilled work.

If subsequently the employer nevertheless decides to leave the employee to continue cooperation, these documents simply will not be needed. But their presence makes the claims against the employee much more significant.

Documentation

If the employer decides to formalize the dismissal of a person who has not passed the probationary period, then he should be warned in writing about the upcoming dismissal 3 working days in advance. The notice of dismissal is drawn up in 2 copies, upon delivery, the employee must put the date and personal signature on the copy of the employer. If the employee refuses to confirm the fact of receipt of the notification, then a corresponding entry is made on the copy of the notification, which must be confirmed in writing by two witnesses.

An entry is also made in the work book about dismissal due to an unsatisfactory result of the probationary period. Employment history issued to the dismissed employee against a personal signature on the last working day, if he is present at work that day. If he is absent on the same day, send him a notice by registered mail about the need to receive work book, so the employer will protect himself from possible claims about untimely issued labor.

The employee must also receive the final cash settlement on the last working day. And in his absence - the next day after applying for the calculation.

At the same time, it should be remembered that no severance pay upon dismissal without passing the probationary period is not allowed.

It can also be noted that under the conditions of the probationary period, the employee has the same rights as the employer, that is, he can quit by warning the employer 3 days in advance if he decides that the working conditions do not suit him.

Although it is easier to arrange for an employee to leave during an internship than to start the procedure for dismissal after a probationary period, it is clear that this action requires carefully prepared documents and additional time and effort on the part of the employer. Meanwhile, many employees, understanding the intention of the employer to dismiss them under Article 71 of the Labor Code of the Russian Federation, are often ready to compromise and terminate the employment contract by agreement of the parties, which is much less labor-intensive for the employer, and often saves him a lot of nerves.

Dismissal during a probationary period can be carried out at the initiative of both the employee and the employer. However, despite the short period of work, the procedure for dismissing an employee during a probationary period must also be observed.

Can I get fired during my probationary period?

Often, in the terms of the contract, when hiring a new employee, a period is prescribed during which his professional qualities can be identified and evaluated. This period of time helps the parties to understand the expediency of further relationships. The probationary period can be set with different duration, depending on the position held.

There is no probationary period for:

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

NOTE! The employer has the right not to require confirmation of the status of the above persons. Therefore, documents confirming such a situation must be presented by the employees themselves.

The probationary period is set only when a new person is hired. 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 prescribed in the employment contract, and also reflected in the order when hiring. Further change of these conditions is allowed 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 itself to a shorter period. For applicants for senior positions, including chief accountants, the probationary period may be extended up 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 the trial period may be the same as the termination of the contract in other situations. At the same time, in case of unsatisfactory results of the work of the hired employee, the employer has the right not to pay the severance pay.

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

Article of the Labor Code on dismissal during the trial period at the initiative of the employee without working off - how is the application written?

An employee who is dismissed during a probationary period may do so at his own request. There should not be any difficulties with how to quit on probation. But for this, it is necessary to notify the management of the organization in writing 3 days before the expected moment of termination of the employment contract. If both parties agree to terminate the employment relationship earlier, then working off, including a 3-day one, is optional (Article 78 of the Labor Code of the Russian Federation).

The application in this case is written in free form indicating the reasons for dismissal. For example: " I ask you to dismiss me of your own free will before the expiration of the probationary period due to the fact that I am not tired of the working conditions in my position.

However, it should be remembered that if the period of the appointed trial period has expired, and the management does not express a desire to terminate the contract, the employee automatically continues to perform his duties on a general basis. No additional documents are required. However, if the employee wants to quit own initiative after the end of the probationary period, it will be necessary to notify the employer at least 2 weeks in advance.

In some cases, when hiring, the possibility of passing a probationary period is not stipulated. In such cases, it is also necessary to work out within a 2-week period.

Settlement with an employee upon dismissal during a probationary period can only be made in the usual manner (salary, compensation for periods unused vacation). But additional payments, for example, severance pay, can be counted upon dismissal of one's own free will only if this condition is spelled out in local regulations.

Other information about the features of calculating severance pay can be found in the material “Is severance pay subject to insurance premiums?” .

How to dismiss an employee on a trial 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 make a list of requirements and tasks, the fulfillment of which is mandatory for further enrollment in the state. 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 that does not stipulate the existence of a probationary period, or if there is no separate written agreement on this condition, termination of the agreement as dismissal during the probationary period can be easily challenged.

The dismissal of an employee during a probationary period, committed at the initiative of the employer, must be accompanied by a warning of the employee himself 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 due to illness and for 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 execution official duties in this status, the previous working day is considered. That is, if the employer nevertheless decides to carry out the dismissal during the trial period, then the notice will need to be given in advance.

As soon as the probation 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 the probationary period is no longer valid, and the employee is subject to the rules in force for ordinary employment.

Dismissal of an employee as not having passed the probationary period

The employer has the right to terminate the contract with an employee who did not cope with his duties during the probationary period, and also showed himself unable to perform further work.

Dismissal on probation 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 inconsistency with the position held by the employee will have to be confirmed.

Before dismissing an employee who has not passed the probationary period , you should give him a warning about dismissal, and this must be done 3 days before the issuance of the order. 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 trial period. After this period, if the management does not take any action in relation to the hired employee, it will no longer be possible to dismiss him under the same conditions.

The following periods are not included in the trial period:

• vacation (including at your own expense, educational);
• periods of disability;
• 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 unexplained reasons.

You can read more about the registration of absenteeism in the article “How to correctly arrange absenteeism for an employee according to the Labor Code of the Russian Federation?” .

Business trips of employees are included in the probationary period. Moreover, according to the results of the performance of travel assignments, one can judge the compliance of the employee with the position held.

During the entire period of the employee's activity on a probationary period, the employer will need to record the facts of the fulfillment or non-fulfillment of tasks, confirming everything with documents. When conflict situations the employer, upon dismissal on a probationary period, can, with the help of such documents, provide irrefutable arguments testifying in favor of the employee's incompetence.

Evidence of unsuccessful completion of the probationary period can be information from the following sources:

• acts of unsatisfactory product quality;
• memos and memos 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 an employee was subjected to disciplinary measures, then these facts can also serve as evidence of his inadequacy for his position.

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

More detailed information you can read about the duties of HR workers at the enterprise in the material "HR records management from scratch - step by step instructions 2017".

Step-by-step instructions for dismissing an employee who has not passed the test and a sample notification of failure to pass the test

In the event of an unsatisfactory impression of the employer from an employee who was on probation, the employer has the right to dismiss him as having not passed the probationary period in a simplified manner (part 1 of article 71 of the Labor Code of the Russian Federation). However, this will require following a certain procedure, the main component of which is the notice of termination of the agreement.

When designing, the following subtleties should be taken into account:

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

Step-by-step instruction for dismissal on probation may look like this.

Firstly, the employee who has not passed the probationary period should be notified in writing, in which it is necessary to indicate the reason for such a decision. You can find a sample notification text on our website at the link below.

Secondly, it is necessary to issue an order from the head of the enterprise to dismiss this employee. The dismissed person must be familiarized with the text of the order against receipt.

Thirdly, it is necessary to make an appropriate entry in the work book.

Correctly filling out a work book will help the material "Filling out a work book upon dismissal - sample-2017"

Fourthly, a full settlement should be made on the funds earned by this employee. The final settlement is made with the employee on his last working day or on the day of the appeal (if the dismissed person is not at work on that day). Severance pay to citizens who have not passed the probationary period is not paid.

Variations can only be in the activities of the first paragraph. After the decision to dismiss on probation is made, it may happen that a refusal to accept the notice will follow. Then an appropriate act is drawn up, recorded by at least 2 witnesses.

Results

If an employee has not passed the probationary period, every employer should know how to fire him without violating the law. There may be slightly more grounds for dismissal during a probationary period than with the usual termination of the contract of a full-time employee at the initiative of the employer. In this case, the amount of payments may be less. The employee also has the right to quit if the new place and working conditions do not suit him, without passing the mandatory working off for a period of 2 weeks.

However, do not forget about the duration of the probationary period, after which you will have to terminate the employment contract on a general basis.

Often, in enterprises, a probationary period is set for hired personnel, during which the employer monitors the work of a new employee. Art. 71 of the Labor Code of the Russian Federation regulates the dismissal of those who have not passed the probationary period. According to this article, if the test results are unsatisfactory, the employer has the right to dismiss the employee, but he must first be notified in writing that the probationary period has not passed.

Dismissal of an employee as not having passed the probationary period: grounds

A probationary period is necessary in order to look at the accepted person in action. The duration of the trial cannot exceed 3 months, and when concluding a fixed-term employment contract for up to six months, the trial period does not exceed 2 weeks. When applying for a managerial position, the test can last up to 6 months.

Dismissal based on the results of a probationary period can occur if the company's management is dissatisfied with the work of a new employee or unsatisfactory results of the test after training are obtained.

Just like that, it will not work to dismiss an employee; there must be good reasons for this:

• poor-quality performance of work;
• failure to fulfill obligations;
• inability to fulfill the assigned tasks and volumes;
• mismatch of qualifications;
• constant violations of internal regulations;
• violation of labor and safety standards.

The reasons for dismissal should be exclusively specific, and not generalized. Based on paragraph 2 of Art. 70 of the Labor Code of the Russian Federation, the condition for the presence of a probationary period must be reflected in the employment contract. If it does not include such a clause, then there is no legal test.

Who cannot be tested

• women - pregnant or having a child under 1.5 years;
• persons elected by competition for positions;
• minors;
• workers invited in the order of transfer.

A complete list of beneficiaries is given in paragraph 4 of Art. 70 of the Labor Code of the Russian Federation.

Important! If the accepted woman turned out to be pregnant before the end of the test and did not pass the probationary period at work, she will not be able to be fired (Article 261 of the Labor Code of the Russian Federation).

How to fire an employee who has not passed the probationary period

The algorithm of the procedure for dismissing an employee as not having passed the probationary period:

• Preparation of documents that are the basis of the decision. These can be: memos, marriage certificates, absence certificates from the workplace, etc.
• Preparation and delivery of notice to the employee. You must notify the employee of the dismissal 3 days in advance. The document is drawn up in 2 copies, on both the employee must sign. If he refuses to sign, a commission of 3 people is created in the organization and in their presence an act is issued refusing to read the notice. If there is a commission, the employee is automatically considered notified.
• Issuance of a dismissal order, on which the dismissed employee must put his signature on familiarization.
• Accrual and payment of settlement amounts on the day of dismissal.
• Making an entry in the work book and transferring it to the owner.

To dismiss an employee, you do not need to wait for the end of the probationary period; conclusions about the quality of work can be made earlier.

Probation Failure Notice: Sample and Contents

According to Part 1 of Art. 71 of the Labor Code of the Russian Federation, the notice must reflect the reason for the dismissal. Additionally, they must be documented. The sample notification of failure to pass the probationary period is not approved at the legislative level. However, there are main points included in the notice of dismissal of an employee who has not passed the probationary period:

• links to articles of the Labor Code of the Russian Federation;
• reasons for declaring the work unsatisfactory;
• notice of termination of the employment contract;
• familiarization record;
• executive visa;
• print imprint.

It is recommended to attach copies of the documents that are the basis for the decision to the notification. Notice of failure to pass the probationary period is drawn up in the amount of two pieces. One copy remains with the employee, the second is filed in his personal file and stored there for 50 years.

It is allowed to dismiss an employee as having not passed the probationary period only if there are good reasons that are documented. Otherwise, the employee will be able to challenge decision through the court.

A test in the first months of being in a new position is a normal offer from an employer who wants to take a closer look at a specialist and try him “in action”. If a person has not passed the test, having stumbled professionally or in compliance with the rules of the labor schedule, then the employer has the right to refuse him a place in a simplified mode, formalizing this as a dismissal of a person who has not passed the probationary period.

Reasons for failing probation

Go to new job is always associated with stress, so for many, the trial period can be a serious test not only for a professional, but also as a person with strong nerves. The understanding that each company has its own specifics does not add confidence, especially if not only the place of work, but also the field of activity changes.

Depending on how the circumstances have developed, you can fail the probationary period for several reasons:

• low qualification;
• indiscipline;
• refusal to comply with corporate rules and procedures;
• poor learning;
• personal troubles.

If the employee himself noticed something similar, he can initiate his dismissal without waiting for the employer's feedback. If a specialist is unable to objectively assess his capabilities, management will express its opinion in the form of dismissal of an employee who has not passed the probationary period.

When to remove an unsuitable employee from service?

In order for the results of the test to become the reason for terminating the contract, it must not only be fixed in the employment contract, but also a lot of time and effort must be devoted to the trial process:

1. Make a plan for passing the probationary period.
2. Develop a monitoring and evaluation system.
3. Assign a person responsible for the training and adaptation of the newcomer.
4. Familiarize the employee with the individual plan, internal regulations, conduct a briefing on labor protection and safety, and most importantly, with the job description and a list of tasks and responsibilities.
5. Set up feedback and a system of interaction with the employee.

It is necessary to make a decision that dismissal is inevitable due to the fact that a person has not passed the probationary period, if enough facts have been accumulated about violations of any of the company's internal regulations, art. 71 of the Labor Code of the Russian Federation.

Notice of settlement within the next three days can be served during the trial period. If the employer hesitated with the conclusions, then the dismissal procedure will be much more complicated, and the provisions of Art. 71 of the Labor Code of the Russian Federation, you need to look for a reason, based on the points of Art. 81 of the Labor Code of the Russian Federation.

If during the trial period there were no obvious reasons for parting, the employer is left to look for flaws in the employee in terms of discipline:

• absenteeism, tardiness, unreasonable absences;
• indulging in alcohol or more dangerous substances;
• systematic failure to perform labor functions;
• violations of labor protection requirements.

How to dismiss an employee, documents required for dismissal?

From the point of view of the organization, the probationary period for the employer is no less laborious than for the employee himself. By the time the final decision is made, management should have:

• training and adaptation plan (signed by the employee);
• test reports;
• reports from a mentor, complaints from clients, explanatory notes from the employee himself;
• acts of violation of discipline, if any.

But, if everything is thought out, executed on time, and most importantly, it was carried out not “for show”, but to achieve a positive result, then in order to successfully complete cooperation, it is enough to follow a simple step-by-step instruction.

Dismissal procedure

The procedure for dismissal of a specialist who has not passed the trial period must be initiated no later than three days before the end of the trial period. Starting the termination process will give notice to the employee.

Employee termination notice

Article 71 of the Labor Code of the Russian Federation requires the employer to provide a written statement of the reasons for termination labor relations. This can be done in a free form, but always with a clarification of the reason, a reference to the contract, test regulations, internal orders and regulations. It is necessary to acquaint the subject with the notice of dismissal against signature, and if he refuses to leave an autograph, then this fact must be witnessed by at least two disinterested persons.

Pletter of dismissal

When drawing up an order to terminate an employment contract, it is not the process of filling out the form in the T-8 form that is complicated. The main thing is to decide on the wording, because sometimes peace is more precious than truth. Even if the employer has sufficient evidence that the trial period was unsuccessful, it is not at all necessary to immediately file this as the dismissal of an employee who did not pass the trial period. There are several options, some of which will suit both parties and will not be a reason to go anywhere with complaints:

You need to talk with the employee before drawing up the order, so that later you do not prove your case to the labor inspector or in court. Depending on the results of the conversation, the reason and the basis indicated in the order and the work book are selected.

Calculation

Any person accepted by employment contract has the right to receive upon dismissal all settlement in in full without any probationary period. And while unscrupulous employers try to convince an unsophisticated candidate that an unpaid trial period is normal practice, there is not a word of truth in this statement. All days and hours worked are subject to payment in accordance with the salary in the staffing table. The employer can save only on the size of the bonus.

In the same way, it will be fair to note that on the day of dismissal (Article 140 of the Labor Code of the Russian Federation), the employee must receive an uncontested part of the accrued:

• compensation for vacation (for three months - this is at least 7 days);
• per diem and expenses incurred (if the employee was on a business trip);
• severance pay under a collective agreement (but only if the dismissal was issued without mentioning Article 71 of the Labor Code of the Russian Federation).

Labor legislation does not contain provisions on free work during the test period.

Issuance of a work book

Following the money personnel service must return former employee his work book, Art. 84.1 of the Labor Code of the Russian Federation. The dismissal record must be duplicated from the relevant order of the management. In the most unfavorable case, it will be written on the pages of the labor that the calculation was issued due to unsatisfactory test results, art. 71 of the Labor Code of the Russian Federation.

Even if the person did not appear for his documents, only the personnel officer who, no later than the day following the dismissal, sent the employee a letter with a proposal to pick up the book or give permission to send it by mail, can consider his mission fully completed. Up to this point and for another 75 years after the date of publication of the order, the labor must be carefully stored in the archives of the enterprise.

Unwanted Consequences

Most failed probationary periods do not find their mention in the dismissal orders and on the labor pages. And this is explained not by the kindness of employers, but by their desire to reduce risks and avoid unnecessary paperwork. Every manager knows that even if he knows how to fire someone who hasn't passed his probationary period, and there are many reasons for this, the procedure for such parting with the staff is too laborious.

In addition, it is well known that the more documents, the higher the likelihood of finding grounds for going to court in them. And how things will turn out there, and whether the dismissed person will have to be reinstated, and even pay him the average for forced absenteeism, will greatly depend on the position of the judge himself.

For their own safety, not too suitable employees are trying to be dismissed for other reasons:

• agreement of the parties;
• own wish;
• disciplinary violations (if such have happened and are documented).

Failure during the trial period should not put an end to a career. It's just special case, not a rule. You can always regard this as an opportunity to gain additional experience. But so that the situation does not repeat itself again and again, you still need to agree on dismissal on more benign grounds. And of course, in the next place, make every effort to work for a longer period.

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other normative documents to regulatory authorities.

People are often hired without recommendations and verification of the necessary professional skills. Therefore, to protect yourself from dishonest employees employers test the suitability of a new employee through a trial period. This is a wonderful opportunity for both parties to find out how expectations match reality.

Reasons for test failure

If the person being checked did not pass the probationary period at work, then the enterprise can legally say goodbye to her long before the end of the test. The negative outcome of the test is the discrepancy between the qualification skills of the newly minted worker and the assigned work in accordance with job descriptions. The negative outcome of the test is legal basis to terminate the contract without the consent of the employee.

Difficulties with new personnel can be not only in the employees themselves, but also in their immediate supervisors. Sometimes a person does not pass a probationary period due to the incompetence or bad mood (personal hostility) of the leader. Therefore, it is necessary to consider the dilemma with new personnel not only in the selection of personnel, but also in its adaptation in the team.

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

Why is a trial period needed?

The probationary period is the control of the professional qualification suitability of this employee for the assigned position. If a new employee has not been told about his immediate specific work obligations, then it is impossible to check his suitability for the position. In this case, the dismissal will be groundless, groundless and illegal.

When to Suspend an Unsuitable Employee

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

If he was absent from work due to illness, leave without pay, leave for study, suspension from work, then the test is extended by the corresponding number of incapacitated days. Idle time at work due to the fault of the employer 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 in the test.

Unlawful dismissal during a probationary check is considered:

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

How to fire someone who hasn't passed probation

1. Double-check the presence of a test clause in the employment agreement. It is possible to dismiss a person who has not passed the probationary period due to a negative result of work only if he has been placed on probation (part 2 of article 70 of the Labor Code of the Russian Federation). If the clause on probation is not noted in the contract, then the worker is taken to the service without one.
2. Find out whether the assigned work was clearly reflected in the contract and job description. According to part 3 of Art. 68 of the Labor Code of the Russian Federation, it is necessary to familiarize the employee with personal duties against signature before signing the employment agreement. And it is desirable that he received his copy. This must be confirmed by the signature on the copy of the employer.
3. Check for a condition about a probationary period in the order for hiring a recruit. He must be familiarized with it under his own signature.
4. Check if it belongs this worker to a group of persons to whom, by law, a probationary period cannot be imputed in any way. According to parts 4 and 5 of Art. 70 of the Labor Code of the Russian Federation, the trial period cannot exceed three months. And it cannot be assigned:

• persons who have signed an employment contract for up to two months;
• persons who came to work on a competitive selection, carried out in accordance with established by law order;
• people who have graduated educational institution no more than one year ago and for the first time enrolled in a job according to the specialty received;
• persons who came to the position by transfer from another employer, and this issue is agreed between the companies;
• pregnant women under the age of majority, and women with children under 1.5 years old;
• persons under 18 years of age;
• to other persons in the options provided for by laws, the collective agreement.

What documents to prepare for the dismissal of a person who has not passed the probationary period

Dismissal of an employee who has not passed qualification test, must be documented. Let's name the materials confirming the professional failure of the employee:

• acts on poor-quality performance of qualifying direct duties;
• reports, reviews, characteristics, conclusions of a particular head of an employee about his unsuitability;
• acts on the production of defective products;
• control logs on passing the test check;
• personal written reports of the employee on the completed assignments and detailed description reasons for non-fulfillment of tasks;
• protocols from the meetings of the commission to establish the results of the employee's test;
• customer entries in the book of complaints and suggestions, etc.

The sequence of termination of the employment contract

1. Before the dismissal procedure, the worker must receive a notice of failure to complete the probationary period. Here is his sample.

The notice is sent by mail with confirmation of the grounds according to which the employee had to be fired as not having passed the probationary period. Having familiarized himself, he must put a signature on the copy of the employer on receipt of the notice. If the worker does not want to sign, an appropriate act should be drawn up with the signatures of two eyewitnesses.

2. Issue an administrative document on the termination of the employment contract on the basis of Art. 71 of the Labor Code of the Russian Federation.

3. Make a cash settlement with the employee on a common basis.

4. On the day of dismissal, return the labor book to the failed employee against signature with a record of dismissal under Part 1 of Art. 71 of the Labor Code of the Russian Federation. In the absence of a worker at work on the day of calculation, it is necessary to inform him by mail so that he does not forget to pick up the work book.

Undesirable Consequence

Dismissal as not having passed the probationary period must be carried out in accordance with the law. Because a disgruntled suspended employee has the opportunity to appeal this in court.

If the employer is not fully 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. For example:

• terminate the contract due to repeated failure to perform 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).