Probation Currently, only lazy employers do not establish for employees. Even if its use is unlawful, the employer, just in case, prefers not to remove it from standard form employment contract. At the same time, use wisely this condition Only a few have learned how to part with employees.

The possibility of establishing a test when hiring is provided for in Art. 70 Labor Code of the Russian Federation. Testing, according to this article, means checking an employee to determine his compliance with the assigned work.

Test Establishment Basics

When fixing the condition of a probationary period in an employment contract, you should remember the restrictions and prohibitions defined by the Labor Code of the Russian Federation. Thus, a hiring test is not established for (Part 4 of Article 70 of the Labor Code of the Russian Federation):

— persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulations legal acts, containing norms labor law;

— pregnant women and women with children under the age of one and a half years;

- persons under the age of eighteen;

- persons who have received secondary vocational education or higher education according to those with state accreditation educational programs and those entering work for the first time in the acquired specialty within one year from the date of receipt vocational education appropriate level;

— persons elected to an elective position for paid work;

— persons invited to work by way of transfer from another employer as agreed between employers;

- persons concluding employment contract for up to two months;

— other persons in cases provided for by the Labor Code of the Russian Federation, other federal laws, and a collective agreement.

If a probationary period, in violation of the prohibition, is established by an employment contract, then it should be borne in mind that the probationary condition will not be applied, and the dismissal of an employee on the basis of an unsatisfactory test result (Part 1 of Article 71 of the Labor Code of the Russian Federation) in the described situation will be recognized by the court illegal.

In addition, it should be remembered that the law establishes restrictive (maximum) test periods (Parts 5 and 6 of Article 70 of the Labor Code of the Russian Federation):

- three months for all employees,

— six months for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations (unless otherwise established by federal law),

- two weeks - when concluding an employment contract for a period of two to six months.

At the same time, the period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.

The absence of a test clause in the employment contract means that the employee was hired without a test (Part 2 of Article 70 of the Labor Code of the Russian Federation). In the case where an employee is actually allowed to work without drawing up an employment contract (Part 2 of Article 67 of the Labor Code of the Russian Federation), the probationary condition can be included in the employment contract only if the parties formalized it in the form of a separate agreement before starting work. The literal interpretation of this norm does not allow an employer who “forgot” to establish a probationary period to establish it by an additional agreement to the employment contract already in the process of employment relations.

FYI.During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations (Part 3 of Article 70 of the Labor Code of the Russian Federation). The literal interpretation allows us to draw an unambiguous conclusion: the amount of wages cannot be reduced during the probationary period. In fact, violation of this rule is allowed by most employers.

Registration of test conditions

Drawing up the test conditions itself does not present any particular difficulties. The text of the employee’s employment contract should include the following provision: “...The employee is given a probationary period of three months.”

The inclusion of this phrase in the employment contract provides certain benefits to both parties to the employment relationship. This allows the employer, before the expiration of the test period, to terminate the employment contract with the employee if the test result is unsatisfactory in the manner prescribed by Part 1 of Art. 71 Labor Code of the Russian Federation.

FYI.During the probationary period, the employee is subject to all the norms of the Labor Code of the Russian Federation, including any grounds for dismissal provided for by the Labor Code of the Russian Federation and suitable for the specific current situation. That is, an employee can be fired for absenteeism (subclause “a”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation), and due to staff reduction (clause 2, part 1, article 81 of the Labor Code of the Russian Federation), and for other reasons .

An employee, if there is a probationary clause in the employment contract, will be able to notify the employer of his dismissal within a shortened period. So, if during the probationary period he comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract according to at will by notifying the employer about this in writing three days in advance (and not two weeks, as required by Article 80 of the Labor Code of the Russian Federation for voluntary dismissal).

Please note that the reason for dismissal is stated as general - “at one’s own request”. The fact that the work did not meet the employee’s expectations can be kept silent. In any case, a notice period of three days rather than two weeks will apply.

Registration of termination of an employment contract

With registration of dismissal on the basis provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation - as a result of an unsatisfactory test, many employers have problems. To minimize the risk of dismissal being declared illegal on the above grounds, we will go through all the stages of this procedure together.

For convenience, consider the following situation.

A new employee was hired at the company, and an employment contract was concluded with him on February 17, 2014. According to the terms of the employment contract, the employee must begin work on this day. The employment contract provides for a probationary period of three months. According to the new employee’s immediate supervisor, the level of knowledge, skills, and attitude to work do not meet the employer’s requirements. This official reported this to the director of the enterprise at a planning meeting on April 30, 2014 and proposed to initiate a dismissal procedure as a result of an unsatisfactory test result. At the same time, the employee’s manager explained that the new employee was absent from work from 03/13/2014 to 03/17/2014 due to illness (a certificate of incapacity for work was submitted).

1. We count the deadlines

First you need to find out the end date of the probationary period. Under the conditions of the situation under consideration, the last day of the probationary period falls on 04/12/2014. However, due to the employee’s absence from work from 03/13/2014 to 03/17/2014, the test period should be extended by five calendar days, that is, until 04/17/2014.

Having established the end date of the probationary period, we determine last date, in which the employee must be given notice of an unsatisfactory test result. In accordance with Part 1 of Art. 71 of the Labor Code of the Russian Federation, notification should be submitted no later than three days before the end of the probationary period.

According to Art. 14 of the Labor Code of the Russian Federation, the period of time with which the Labor Code of the Russian Federation associates the emergence of labor rights and obligations begins with the calendar date that determines the beginning of the occurrence of these rights and obligations. The period of time with which the Labor Code of the Russian Federation connects the termination of labor rights and obligations begins the next day after the calendar date that determines the end of the labor relationship. Terms calculated in years, months, weeks expire on the corresponding date last year, month or week period. The period calculated in calendar weeks or days includes non-working days. If the last day of the period falls on a non-working day, then the end of the period is considered to be the next working day following it.

In our situation, the last day for delivering notice of upcoming dismissal will be 04/14/2014.

Question. Is it possible to begin the procedure for dismissing an employee before the end of the probationary period if the employer comes to the conclusion that the employee did not complete the probationary period?

Start the dismissal procedure under Part 1 of Art. 71 of the Labor Code of the Russian Federation as a result of an unsatisfactory test result is possible at any time. However, it should be borne in mind that by that time a sufficient amount of documented evidence should have been collected that the employee did not pass the test.

2. We collect evidence of an unsatisfactory test result

Such grounds may include reports/memos from the manager and other services, acts of internal investigations of employee misconduct, acts of inspections recording erroneous actions of the employee, and other written evidence.

3. We issue a notification

The notification should clearly and clearly describe the reasons why the test result was found unsatisfactory (Example 2).

delivery

JSC "Speed ​​Delivery"

N. A. Kozlova

Moscow, st. Pirogova, 7, apt. 24

Notification

Dear Nikolai Alexandrovich!

We notify you that the test result established by clause 2.5 of the employment contract concluded between you and OJSC “Speed ​​Delivery” on February 17, 2014 (No. TD-14) was recognized by the employer as unsatisfactory for the reasons stated below.

In accordance with the official investigation report dated March 25, 2014, based on the results of an inspection during the period of your work from February 17, 2014 to March 24, 2014, a violation of clauses 4.1 and 4.1.2 of the Rules for the delivery of items to addressees, approved by order dated October 7, 2011 N 417, was revealed, and clause 3.1 of the job description of the leading specialist of the delivery department, approved on October 30, 2012, namely: the shipment dated February 25, 2014 N 41 was delivered to the addressee 14 hours late, the shipment dated February 26, 2014 N 54 was delivered 2 hours late, departure dated 03/06/2014 N 62 was delivered 4 hours late.

Due to the unsatisfactory result of the test, the management of High-Speed ​​Delivery OJSC made a decision to terminate your employment contract dated February 17, 2014 No. TD-14 under Part 1 of Art. 71 Labor Code RF (if the test result is unsatisfactory) 05/16/2014.

I notify you that before the date of dismissal (05/16/2014) you retain the right to terminate the employment contract at your own request.

Director of OJSC "Speed ​​Delivery" Smirnov N. A. Smirnov

If the employee refuses to sign the receipt of the notification (or refuses to read it), it is necessary to draw up a report about this (Example 3).

Open Joint Stock Company "Speed ​​Delivery"

Act

12.05.2014

N 15

Moscow

On refusal to put a signature on the acquaintance

We, the undersigned: director Smirnov N.A., deputy director Tkachev E.N., chief accountant Nosov N.S., head of the personnel department Ivanova N.K., have drawn up this act on the following:

Today, May 12, 2014, at 12:30 p.m. in the office of the director of High-Speed ​​Delivery OJSC, N.A. Smirnov, the leading specialist of High-Speed ​​Delivery OJSC, N.A. Kozlov, was presented with a notice dated 12.05 for review and signing upon receipt. 2014 N 45 about unsatisfactory test results. After familiarization, Kozlov N.A., in the presence of all the undersigned officials, signed in receipt of the specified notification and refused to sign for familiarization with it.

Smirnov N. A. Smirnov

Tkachev E. N. Tkachev

Nosov N. S. Nosov

Ivanova N.K. Ivanova

4. We give the employee a choice

In most cases, upon receiving such notice, employees write a letter of resignation of their own free will. The law does not prohibit, if there are several grounds for dismissal, choosing one of them, including dismissing an employee on his own initiative.

Question. The employee was given a notice of unsatisfactory test result on the verge of deadlines. Immediately after reading it, he wrote a letter of resignation of his own free will, but indicating the deadline for dismissal in two weeks, as provided Art. 80 Labor Code of the Russian Federation. However, the date of dismissal will already go beyond the probationary period. How to protect yourself from the risk of an employee withdrawing his application for dismissal immediately after the end of the probationary period?

You can only protect yourself from such a tricky turn of the situation:

- asking the employee to rewrite the application indicating the date of dismissal, which is included in the probationary period;

— by terminating the employment contract by agreement of the parties on the “required” date;

- by terminating the employment contract on a previously planned basis, provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation, on the date specified in the notice, despite the presence of the employee’s resignation letter.

5. Formalize your dismissal

The dismissal procedure in this case is standard.

Step 1. On the day of dismissal, you must issue a dismissal order (the project can be prepared in advance).

FYI.You have the right to use the unified form N T-8, approved by Decree of the State Statistics Committee of the Russian Federation dated 01/05/2004 N 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment.” Despite the fact that from 01/01/2013 the unified forms are no longer mandatory for use, they provide the greatest information content and for many employers remain the most convenient due to their versatility and familiarity. However, do not forget that they must be approved by order of the company.

Step 2. Then the employee must be familiarized with the order under his personal signature or an appropriate entry must be made on the order (instruction) in the case where the order to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under his signature (Part 1 of Article 84.1 Labor Code of the Russian Federation).

Step 3. Make a full settlement with the employee in accordance with the settlement note (Article 140 of the Labor Code of the Russian Federation).

Step 4. Issue to the employee copies of documents, including a 2-NDFL certificate, if there is his application, a certificate of the amount of earnings for the two calendar years preceding the year of termination of work (clause 3, part 2, article 4.1 of the Federal Law of December 29 .2006 N 255-FZ “On mandatory social insurance in case of temporary disability and in connection with maternity"). The certificate form was approved by order of the Ministry of Labor of Russia dated April 30, 2013 N 182n.

Step 5. Record the dismissal in work book. According to Art. 84.1 of the Labor Code of the Russian Federation, an entry in the work book about the basis and reason for termination of the employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law and with reference to the relevant article, part of the article, paragraph of the article of the Labor Code of the Russian Federation or other federal law.

Step 6. Complete the remaining personnel documents to record labor relations:

— employee’s personal card (most employers continue to use the unified form N T-2). It is necessary to obtain the employee's signatures on the card in certain places provided by the form;

— notice of termination of the employment contract (dismissal), sent to the military registration and enlistment office within two weeks from the date of dismissal. The employee's signature is not required on it ( Methodological recommendations on maintaining military records in organizations, approved by the General Staff of the Armed Forces of the Russian Federation dated April 11, 2008).

Step 7. Issue a work book to the employee. The issuance is carried out under the personal signature of the employee, indicating the date of receipt in the journal of the movement of work books and inserts in them (Example 5). The form was approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions for filling out work books.”

Appendix No. 3

TO Resolution Ministry of Labor of Russia dated October 10, 2003 N 69

Book of movement of work books and inserts in them

N p/p	Date of hiring, completion of the work book or insert in it	Last name, first name and patronymic of the owner of the work book	Series and number of the work book or its insert	Position, profession, specialty of the employee who handed in the work book or for whom the work book or insert in it was filled out	Name of the place of work (indicating the structural unit) where the employee was hired	Date and number of the order (instruction) or other decision of the employer on the basis of which the employee was hired	Signature of the responsible person who accepted or filled out the work book	Received for completed work books or inserts in them (rub.)	Date of issue of the work book upon dismissal (termination of the employment contract)	Employee's signature when receiving a work book
Number	Month	Year
1	2	3	4	5	6	7	8	9	10	11	12	13
1	09	01	2014	Kulikov Anton Vladimirovich	Series - TK-IV, N 2457454	Specialist		09.01.2014	Signature
2	09	01	2014	Nazaridze Turam Davidovich	Series - TK-II, N 5574322	Leading specialist	JSC "Speed ​​Delivery", delivery service	09.01.2014	Signature
3	17	02	2014	Kozlov Nikolay Alexandrovich	Series - TK-IV, N 8604301	Leading specialist	JSC "Speed ​​Delivery", delivery service	17.02.2014	Signature	150	16.05.2014	Kozlov

If it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for it or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book (Article 84.1 of the Labor Code of the Russian Federation).

Mistakes when terminating an employment contract

An analysis of practice has shown that the main mistakes in dismissal on this basis are:

1) failure to comply with the warning period or lack of warning at all. The employer must notify the employee of termination of the employment contract on this basis no later than three days in advance;

2) failure to comply with the written form of the warning;

3) ignoring the legislator’s requirement to indicate the reasons that served as the basis for recognizing this employee as having failed the test. The employer's statement about an unsatisfactory test result cannot be unfounded; it must be supported by documents;

4) incorrect classification of actions/inactions as the reason for the employee’s unsatisfactory test result. For example, if you hired a driver without including in his duties washing the entrusted car, then his failure to perform this function in no case can be regarded as evidence of an unsatisfactory test result;

5) termination of the employment contract on the above grounds after the expiration of the probationary period.

All specified requirements for registration are provided for in Part 1 of Art. 71 Labor Code of the Russian Federation. Despite this, the number of employers forced to reinstate employees dismissed in violation of these requirements is not decreasing.

Judicial practice. An employee dismissed under Part 1 of Art. 71 of the Labor Code of the Russian Federation, was reinstated by the court. Considering the case, the court came to the conclusion that the defendant did not comply with the dismissal procedure, and did not indicate specific reasons that served as the basis for recognizing the employee as having failed the test, which is a gross violation of labor legislation. The right to evaluate the employee’s test results belongs to the employer, who during the probationary period must find out the business and professional qualities employee. Therefore, when dismissing an employee as having failed the test, the obligation to prove the fact of his unsatisfactory work rests with the employer.

However, the defendant did not provide sufficient and convincing evidence to confirm the facts set out in the annex to the employee’s notification about the unsatisfactory test result. It does not follow from the evidence presented how the plaintiff’s level of professionalism and the quality of her performance of her duties were assessed. According to the court, the defendant did not provide evidence convincingly indicating that the plaintiff was improperly fulfilling her official duties. Thus, the court came to the correct conclusion that there were no grounds for deeming the employee’s test results unsatisfactory (ruling of the St. Petersburg City Court dated October 14, 2013 N 33-15722).

* * *

It should be remembered that upon dismissal under Part 1 of Art. 71 of the Labor Code of the Russian Federation, the most important thing is compliance with the dismissal procedure. Moreover, it will be legal only if there is evidence of unsatisfactory test results for the employee.

Even if the employer tries to comply with all the requirements of the law, as practice shows, he is not immune from the employee’s reinstatement. If the court establishes specific circumstances, the court may conclude that the employer violated the dismissal procedure, despite the fact that the employee’s actions may show signs of abuse of rights (for example, silence about the presence of an illness and an open sick leave).

A probationary period is a working period during which the employer and employee have the opportunity to finally take a closer look at each other and decide whether it is worth continuing cooperation. Moreover, although it seems that the final word here remains with the employer, the employee can also change his mind during the probationary period, so it is probably worth drawing the conclusion that establishing a probationary period is beneficial to both parties to the employment relationship.

Legal norms

The norms and nuances of the probationary period are stipulated in the articles of the Labor Code Russian Federation:

• 70 “Test for employment”;
• 71 “Result of the test when applying for a job.”

Some features of the test setup for state civil servants are specified in the Federal Laws of the Russian Federation.

Determination of probationary period

As mentioned above, a probationary period is a period during which the employer can determine whether the employee is suitable for him, and the employee can finally decide whether he is satisfied with such work and such a team. The probationary period is no different from the normal work process, except that both parties to the working relationship are closely scrutinizing each other, and during this period there is a simplified dismissal procedure in terms of working out. This is where all the differences with the normal labor process end - an employee undergoing a probationary period is subject to the same requirements and guarantees as all other employees of the enterprise, in accordance with their positions, labor law standards and internal documents of the enterprise.

Documentation of the probationary period

The probationary period is part of the labor process, therefore, the employment contract must include an entry stating that the employee was hired on a probationary period. If such a record was not made, it is considered that the employee was accepted without any tests, even if after a couple of days or a week the employer comes to his senses and decides to formalize the test. It is illegal to do this.

The probationary period must be established with the consent of the employee, and the employee must know its duration and the nuances of completion. Information about the duration of the probationary period is duplicated in the employment order - the dates of the probationary period in the employment contract and the employment order must match.

Information about the completion of the probationary period is not entered into the work book, except in cases where the employee is dismissed as having failed the test. The end of the probationary period in other cases - when the employee successfully copes and is left on the staff of the enterprise - is not documented in any way, because the employment contract already states that the employee has been accepted, and the dates of the duration of the probationary period indicate its completion.

Probationary period regulations

In order for each employee to understand what his responsibilities are during the probationary period, and also to be sure that his rights are protected, it is possible to further develop and approve the Probationary Period Regulations.

The probation period must contain:

• general provisions - which stipulate the duration of the probationary period, its goals and objectives, and may refer to legal norms;
• procedure for passing the test - which indicates the nuances of passing the probationary period for this enterprise: work plan for the probationary period, assignment of a supervisor to the employee, procedure for submitting reports, form of conclusion on the test results, etc.;
• the result of passing the test - where they indicate the procedure for making a decision on the results of the probationary period.

An employee of the enterprise must be familiar with this Regulation.

Probation plan

Of course, it is more convenient to evaluate the results of an employee’s activities when there are certain criteria, for example, if the employer has established that a certain amount of products of a certain quality must be produced per work shift. For the employee, for his part, it is also more beneficial to have a clear plan during the probationary period, since if a decision is made that the employee did not cope with the test, having precise criteria in hand, it will be easier to appeal it in court.

Of course, the tasks for the probationary period set out in the plan must be precise, the criteria for their evaluation should not allow for ambiguous interpretation if some problems arise during the probationary period. additional tasks, they must be included in the plan.

p>The plan must be signed by the head of the enterprise and provided to the employee for review.

In general, it is in the interests of both the employee and the employer to record literally every step on paper and certify with signatures - this allows you to avoid unpleasant conversations with the labor commission and other regulatory authorities in the future.

Probation period report

At many enterprises, based on the results of the probationary period, the employee is required to write a report. As a rule, enterprises have a list of issues that the employee needs to disclose in his report, for example:

• what difficulties he encountered during the probationary period and how he solved them;
• what innovations he can bring to his work and to the work of the unit;
• what tasks the employee learned to cope with during the probationary period;
• what tasks the employee failed to cope with, why and how he plans to cope in the future.

The report is usually drawn up in any form in compliance with business style on standard sheets A4.

Conclusion on passing the probationary period

At the end of the probationary period, the employer, if described in the Probationary Period Regulations, writes a conclusion on the results. This could be a separate order, analytical note, commission act, etc. If a supervisor was provided to the employee during the probationary period, such a conclusion is drawn up by him. The enterprise may have a specially designed form for the report, or the conclusion may be drawn up in any form.

In the conclusion on completion of the probationary period, it is necessary to indicate, for example, such criteria and their assessment as:

• professional competence;
• obligation;
• diligence;
• ability to plan;
• workflow optimization;
• quality of work performed;
• compliance with labor discipline;
• employee achievements;
• ability to work in a team.

Based on this conclusion, we can conclude whether the given employee is suitable for the enterprise. The employee must be familiar with the conclusion against signature, especially if we are talking about the dismissal of the employee for not completing the probationary period.

Order to end the probationary period

In the case when the employee has successfully completed the probationary period, no additional documents are required - the employee simply continues to work as he worked before, and by default it is considered that he has completed it.

In the same case, when the employee did not cope with the test, he must be dismissed at the end of the probationary period. To do this, it is best to first draw up a conclusion about the results of the probationary period, familiarize the employee with it against signature, and if the employee refuses to sign, draw up a corresponding report about this in the presence of the appointed commission.

After which the company issues an order to dismiss the employee due to the fact that he has not completed the probationary period. The basis for the order is an employment contract, which states the condition of completing the probationary period, and a conclusion on the results of the test or an act of the commission.

What are the benefits of a probationary period?

Despite the fact that the probationary period is the same part of the work process as regular working days, and the employee is subject to all the rights and obligations provided for by the labor code and internal documents of the enterprise, during the probationary period there is one significant nuance that makes it attractive and for the employee and for the employer. We are talking about dismissal during the probationary period.

Under normal circumstances, dismissal at the initiative of the employer is almost impossible, especially if a permanent employment contract is signed. After all, first you will have to prove the employee’s dishonesty or wait for an opportunity to liquidate the enterprise - which, you see, is not worth such effort if we are talking about one working unit.

If an employee is undergoing a probationary period, and the employer sees that he cannot cope, the employee can be dismissed not only as having failed the test at the end of the probationary period, but also in the midst of the process at any time. To do this, the employer must only notify the employee of dismissal in writing, against signature, three days before the date of dismissal. It is best to prepare a conclusion on the unsuitability of the employee for this, since such dismissal can be appealed in court.

Dismissal at the end of the probationary period or in the middle of it is not agreed upon with the trade union committee and does not imply payment of severance pay, which, of course, is also very convenient for employers.

The employee, for his part, in the event of dismissal under normal circumstances, must work for at least two weeks, and work during the probationary period is only three days. Therefore, for some reason, it is also more profitable for an employee to get a job with a probationary period than without it, despite the fact that many are worried about how a record of such a short-term job will look in their work book or resume.

How long can the probationary period last?

According to the law, the average length of the probationary period is three months. At the request of the employer, the probationary period can be set for just a month or two months. But it’s better to take as much time as possible, since you can always complete the test ahead of schedule, but extending the probationary period is prohibited by law.

In some cases, the length of the probationary period varies.

1. For employees with whom an employment contract has been signed for a period of two to six months, the probationary period must be set at two weeks.

2. For civil government employees, the probationary period is set to last from six months to a year, in some cases - for the same three months.

3. For heads of enterprises, branches and various divisions, the probationary period can be set from three months to six months.

It must be taken into account that only those days when the employee was present at the workplace are counted in the probationary period. Therefore, for example, sick leave during the probationary period or military training does not count towards the general term. That is, an employee who has a probationary period from May 5th to June 5th, who was sick for four working days during this period, will have to work on the probationary period until June 9th. Extension of the probationary period due to the employee’s absence from the workplace is formalized by an order, to which the relevant documents confirming the employee’s absence are attached. And this is the only case when it is allowed to extend the probationary period.

Prohibition on setting a probationary period

Labor legislation provides for a certain category of citizens for whom a probationary period is not established. These include:

• pregnant women;
• minors;
• employees hired for transfer between enterprises or divisions;
• young specialists accepted into their specialty within a year after graduation;
• employees in elected positions;
• employees who won a competition for a position;
• temporary workers whose employment contract is signed for a period of no more than two months.

In some cases, pregnant women or employees hired by transfer may still be subject to a probationary period - we are talking about the civil public service.

Guarantees for employees during the probationary period

We must not forget that the law guarantees employees on a probationary period equal rights with other employees. This applies to all the nuances of the work process. For example, pay during the probationary period should be the same as for other employees in this position. If the employer pays the employee less during this period, he violates the norms of the Labor Code. It is strictly prohibited to describe in the Probationary Period Regulations or Employment Contract that during this period the employee will be paid less.

The probationary period is an opportunity for both the employee and the employer to evaluate how suitable they are for each other. However, employers, when ordering a test, often violate the Labor Code of the Russian Federation. And there are some, not very decent employers who take advantage of the probationary period to hire workers at a reduced salary. And then, dismissing the previous employee as not completing the probationary period, they hire the next one.

The sad experience of workers deceived by their employers has received wide publicity. As a result, concerned citizens already at the first interview ask personnel officers: how much do they pay during the probationary period and do they pay for the probationary period in the company at all?

It is clear that it is impossible to know for sure how the employer will behave after the adaptation period for a new employee. But how to protect your rights, fight dishonest employers and what to pay attention to when you enter into an employment contract with a probationary period - we’ll talk about this.

Situation 1. Who should not be given the test

The young specialist graduated from the institute six months ago. I have worked before, but this is the first time I am getting a job in my acquired specialty. He is given a probationary period. Is this legal?

Let's start with the fact that the test can only be ordered by mutual consent of the employee and the employer. This is provided Article 70 of the Labor Code of the Russian Federation, which says: “When concluding an employment contract, it agreement parties a provision may be made for testing the employee in order to verify his suitability for the assigned work.” That is, without the consent of the employee, a probationary period cannot be assigned to him. Of course, the applicant is unlikely to be able to take advantage of this right; most likely, he will not be hired if he tries to start his career with such disagreement. But there are categories of employees for whom such a trial period is not permitted by law, even with their consent. A hiring test is not established for:

• pregnant women and women with children under the age of one and a half years;
• persons elected through a competition to fill the relevant position;
• persons under the age of 18;
• persons who have graduated from state accredited educational institutions of primary, secondary and higher vocational education and are entering work for the first time in the acquired specialty within one year from the date of graduation educational institution;
• persons elected to elective positions for paid work;
• persons invited to work by way of transfer from another employer as agreed between employers;
• persons concluding an employment contract for a period of up to two months.

Therefore, despite the fact that the young specialist from our example has already worked, it is unlawful to set a test for him. And even if he signed a contract containing such a condition, the employer cannot fire him as having failed the test.

Situation 2. Employment contract with a probationary period

The specialist got a job. The employer warned him about the probationary period. An employment contract was signed. But there was not a word in it about the purpose of the test. What are the consequences?

If a probationary period is assigned, this must be specified in the employment contract. The Labor Code of the Russian Federation states that the absence of such a condition in the employment agreement means that the employee was hired without a special period of adaptation and evaluation. Even if there is an order to appoint a trial, it will not be possible to dismiss an employee as having failed the probationary period. And the labor inspector or the court, having compared the order and the contract, will consider the absence of a corresponding clause in the contract to be a significant violation. In this case, the court will certainly recognize the appointment of a probationary period as invalid.

Situation 3. Fixed-term employment contract for the duration of the trial

The employee was offered to enter into a fixed-term employment contract for two months during the probationary period. After its expiration, the contract will either be re-signed for an indefinite period, or will not be concluded if the employee does not will pass the test. Is this legal?

IN Article 58 of the Labor Code of the Russian Federation it is written in black and white: “It is prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period of time.” And concluding a fixed-term contract instead of completing a trial falls under such cases. Moreover, the Plenum of the Supreme Court of the Russian Federation, in its Resolution No. 2 dated March 17, 2004, recommended that courts pay attention to these points special attention. Therefore, if an employee goes to court or the labor inspectorate with a complaint about such actions of the employer, a fixed-term employment contract can be recognized as concluded for an indefinite period.

Situation 4. Length of period

An employee gets a job as an accountant. She was given a probationary period of 6 months. Is this legal?

According to Article 70 of the Labor Code of the Russian Federation, the probationary period cannot exceed three months. The exceptions are heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations, for which the test is established for a period of no more than six months. But in our case, a person gets a job as an accountant, and not as a chief accountant or his deputy. Thus, a probationary period of 3 months is the maximum duration. What if labor contract is concluded for a period of 2 to 6 months, then the trial cannot exceed two weeks. When concluding a contract lasting less than 2 months, there is no trial period at all.

During the trial period, days of temporary incapacity for work of the employee and other periods when he was actually absent from work are not counted. That is, if an employee is assigned a probationary period of 2 months, and he was sick for 2 weeks of these two months, then the probationary period is extended by two weeks.

Situation 5. Reduced salary for probationary period

When hiring a new employee, the employer tells him that he is being hired for a two-month trial period - the salary will be lower than at the end of these two months. Are these conditions legal?

What does the Labor Code say about what the salary should be during the probationary period? And in general, is the probationary period paid? Article 70 of the Labor Code states: “During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, and local regulations.” Each organization must have a staffing table, which indicates all salaries (tariff rates) for each position existing in this enterprise. Thus, for the probationary period (Labor Code of the Russian Federation), payment should not be less than indicated in the staffing table. This means that the situation with understating wages in this case is unlawful.

Of course, the employer can justify the reduced salary for the probationary period in other ways. For example, establish that after this period the first indexation of wages occurs (the Labor Code of the Russian Federation directly establishes the employer’s obligation to index the wages of employees), or transfer the employee to another position in the staffing table. Finally, you can simply increase his salary without making this conditional on passing a probationary period (for “one-off” positions that are present in the staffing table in a single copy).

You can challenge a reduced salary for the adaptation period only if it is white. Or the condition for a reduced salary is specified in the employment contract. If this condition is not specified in the contract, and part of the salary was black, then it is difficult to prove that this money was paid to you at all. However, an attempt to challenge a reduced salary assigned in the first two to three months of work is relatively realistic in our conditions only for workers who do not want to stay at a given place of work.

And one more point: in an employment contract, wages cannot be determined by the wording “according to staffing table" IN Article 57 of the Labor Code of the Russian Federation it is said that the terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments) are mandatory for inclusion in the employment contract. That is, it must include either the tariff rate or salary, as well as other payments.

6. Test results and their consequences

The new employee got a job with a probationary period. At the end of the test, the employer did not inform him of the results of the test, and the employee continued to work. Two weeks have passed. Unexpectedly, the employer announced that the employee had failed the test and would be fired as a result. Did the employer violate the law with his actions?

In this situation, the employer made two mistakes at once. Firstly, if the test period has expired and the employee continues to work, then he is considered to have passed the test and subsequent termination of the employment contract is allowed only on a general basis ( Art. 71 Labor Code of the Russian Federation). Secondly, under the same article, if the employer is dissatisfied with the results of the test, he has the right to terminate the employment contract with the employee before the expiration of the employee evaluation period. But at the same time, he must notify the employee about this in writing three days in advance, indicating the reasons that served as the basis for recognizing him as having failed the test.

So, in this case, the employer did not give the employee three days' written notice, giving reasons, that he failed the test. And only after two weeks, when the person continued to work, he verbally announced the decision to fire him. Based on all of the above, it is unacceptable to dismiss an employee as having failed the test.

By the way, the Labor Code of the Russian Federation reserves the right for the employee to appeal the employer’s decision on an unsatisfactory test result in court. And in this case, special attention is paid to the formulation of the reasons why the employee was not satisfied with the employer. In this case, all statements of the employer must be supported by relevant evidence. The court will be critical of dubious, vague formulations.

If, during the probationary period, the employee himself comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing three days in advance.

Please note: not in two weeks, as with a normal voluntary dismissal, but in just three days.

So, we have looked at the most common situations in life. Let's repeat the most important rules.

Results

Let's once again list the points that are worth paying attention to:

1. There are categories of employees for whom a probationary period (PT) is not provided at all.
2. If the IP is not included in the contract, it means that the employee, from the point of view of the law, was hired without an IP.
3. Concluding a fixed-term employment contract for the period of IP is prohibited by the Labor Code of the Russian Federation.
4. IP must not exceed three months. The only exceptions are managers and chief accountants. For them, the maximum IP is 6 months.
5. When concluding an employment contract from 2 to 6 months, the IP should not exceed two weeks. And if a fixed-term employment contract lasting less than 2 months is concluded, IP is not provided for in a fixed-term employment contract at all.
6. The salary for the IP should not be lower than the salary existing in the staffing table for a specific position.
7. If the employee does not pass the IP, the employer is obliged to notify him of his decision in writing three days in advance, indicating the reasons.
8. If the IS is over and the employee continues to work, then it is considered that he has successfully completed the IS.
9. If an employee decides during the period of employment that this position is not suitable for him and decides to quit, he is obliged to notify the employer of his decision three days before dismissal.

Remember that stability and reliability are usually where the employer complies with the law. If you get a job where you are initially asked to act illegally, then be prepared for the fact that in the event of a disagreement it will be much more difficult to defend your rights.

Establish a probationary period when accepting new employees. For how many days to check employees and how to document the procedure, read the article.

From this article you will learn

What is a probationary period?

The procedure for establishing a probationary period is regulated by Article 70 of the Labor Code. It specifies the rights and obligations of the parties. The main condition for establishing a test is mutual consent, as stated in the first part of the article. Usually there are no difficulties, since applicants agree to the conditions put forward by the employer.

There is not always the right to check an employee. Individual categories persons Otherwise, this is regarded as a gross violation of the law. Please keep in mind that a probationary period can only be established subject to long-term employment - for a period of more than two months (Article 289 of the Labor Code).

Pay attention! Count the probationary period into the period of actual work and take it into account when calculating your vacation and insurance periods. Experts at Sistema Personnel talk about how to calculate length of service.

According to parts 1 and 2 of Article 70 of the Labor Code, the condition is reflected in the contract. If a document is drawn up without the required clause, the employee is automatically considered accepted without verification. Prepare the document carefully and check the text for significant terms.

Question from practice

Nina Kovyazina answers,
Deputy Director of the Department medical education and personnel policy in healthcare of the Russian Ministry of Health.

The test clause does not apply to mandatory conditions employment contract. When drawing up an employment contract by agreement of the parties, you can write in it to check how the newcomer will cope with the work (). In this case, the test condition ()...

Ask your question to the experts

Maximum probationary period for an employee

The duration of the check is limited. The maximum possible probationary period is 3 months for ordinary employees. If an employee works under a fixed-term contract, which is concluded for a period of two to six months, the inspection lasts no more than two weeks (Part 6 of Article 70 of the Labor Code). You do not have the right when all conditions are agreed upon with the employee, as this is prohibited by labor legislation.

Based on the contract, issue an order for employment. Include it with dates, as well as a standard list of details:

• company name;
• employee personal data;
• full name of the position, structural unit;
• character labor activity;
• tariff rate with surcharges;
• reference to the basis - in this case, the employment contract;
• signatures of the manager and employee.

Sometimes the sequence of document preparation is violated, so an employee is allowed to perform duties earlier than the organization concludes a contract with him. In this case, the law is not violated, but the contract must be concluded within three working days from the date of commencement of work. Secure the verification condition in a separate agreement. If the contract does not have a probationary period, admission occurs as usual.

Dismissal due to failure to complete the probationary period

Entrust the assessment of the newcomer’s work performance to the immediate supervisor, mentor or special commission. If the observation results indicate that a person is qualified for the job, he is considered and continues to work. You don't need to publish additional orders or prepare other documents.

If an employee cannot cope and his competencies do not meet the established level, decide to fire him. Notify the employee about this no later than three days before the date of termination of the labor contract (Article 71 of the Labor Code). Draw up the notice in two copies: give one to the employee for review, and leave the second with the organization.

To avoid claims and accusations of illegal dismissal, collect an extensive documentary base. Any documents that have at least some relation to the case will be useful: reports, memos, complaints and comments from clients, conclusions and acts of the commission, reports, etc. State the reasons for dismissal clearly and legally correctly.

Issue an order to terminate the TD. Indicate unsatisfactory test results as the reason for dismissal (Article 71 of the Labor Code). You are not obligated to pay severance pay, coordinate the decision on dismissal with the trade union. On the last day, issue a work book, wages and compensation for unused vacation. . Follow the recommendations, otherwise the employee will be considered permanently employed. It is possible to terminate the employment relationship with an employee who has successfully passed the test on a general basis.

Not every person calmly takes the news of an imminent dismissal. The situation is heating up because the employer is not satisfied with the level of job compliance. Therefore, the procedure develops into acute conflict with the involvement of the State Tax Inspectorate, the court, the prosecutor's office and other authorities. To avoid litigation, develop a local act regulating the inspection.

Include in the Regulations information on the design, establishment of an audit, and rules for assessing performance results. List the categories of persons who are not subject to the initial test. Attach standard forms as attachments: characteristics, notifications, conclusion of the commission. Approved local rules must not contradict labor legislation.

Reference: at the stage of drawing up an application for personnel selection. But this does not cancel the preparation of the Regulations.

Before employment under a probationary period, familiarize the employee with the “Regulations” against signature. If a person agrees with the points of the Regulation, the likelihood of conflict upon dismissal is minimized. Applicants who are not satisfied with the organization's routine are eliminated. This simplifies the process of recruiting loyal staff.

Conclude an employment contract without a probationary period only if you are confident in the applicant. This is usually practiced when selecting rare specialists who have great experience, merit. In other cases, take some time to check. Follow the rules for preparing documents to avoid fines.

Recruiting and hiring a new employee for a company is often a long and labor-intensive process. As a rule, the applicant goes through several stages of interviews, often professional tests. However, even the most painstaking selection does not exclude the risk for the employer that the new employee will be insufficiently qualified or will simply be negligent in his duties. To determine how well a new employee meets the company's requirements, when hiring a new employee, it is advisable to establish a probationary period. In order to be able to evaluate a new employee and terminate the employment relationship in the event of an unsatisfactory assessment of his work, it is necessary not only to stipulate, but also to legally formalize the completion of a probationary period. Let's consider legal basis probation period established by the Labor Code (Articles 70, 71 of the Labor Code of the Russian Federation), and the most common errors when applying them in practice.

We set a probationary period

The probationary period is established to verify the employee’s suitability for the work assigned to him, and the following is important:

A probationary period can only be established for newly hired employees, that is, those who have not previously worked for the company. A probationary period cannot be established, for example, for an employee already working in the company and appointed to a higher position;

a probationary period can only be established before the employee starts work. If the employer considers it necessary to provide a trial for the hired employee, then before the employee begins to perform his duties, one of the documents should be drawn up - an employment contract containing a condition on the trial, or a separate agreement providing for the use of a probationary period. Otherwise, the probationary period condition will not have legal force;

the condition for a probationary period must be contained in the employment contract, as well as in the employment order.

Moreover, the employee must confirm with his signature the fact that he has read these documents. It is not necessary to put a mark in the work book indicating the establishment of a probationary period.

It is important to consider that the main document confirming the existence of a probationary period is an employment contract. In accordance with the Labor Code, a probationary period is established only by agreement of the parties, and the document reflecting the mutual expression of will is the employment contract. If the condition of a probationary period is contained only in the employment order, then this is a violation of labor legislation, and, in the event of a dispute, the court will declare the probationary condition invalid.

In addition to the employment contract, the employee’s consent to a probationary period can be expressed, for example, in a job application:

The absence of a probationary clause in the employment contract, as well as the actual admission to work without preliminary registration probationary agreement means that the employee is hired without a trial.

The employer is obliged not only to include the test condition in the relevant documents, but also to familiarize the new employee with its labor responsibilities, job description and internal rules labor regulations. The employee confirms the fact of familiarization with his signature. This is especially important when hiring with a probationary period, since in the event of dismissal of an employee who did not complete the probationary period, the fact that he is familiar with his job duties will be important in confirming the non-compliance with the assigned work.

Often, organizations enter into a fixed-term employment contract with the hired employee instead of an open-ended contract with a probationary period. Many employers believe that by concluding a fixed-term employment contract, for example, for three months, they simplify the situation for themselves in case the employee cannot cope with the proposed work. That is fixed-term contract will end and the employee will be forced to leave.

However, the Labor Code of the Russian Federation establishes that a fixed-term employment contract can be concluded only in cases directly provided for by law (Articles 58, 59 of the Labor Code of the Russian Federation). In accordance with Article 58 of the Labor Code of the Russian Federation, “it is prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided to employees with whom an employment contract is concluded for an indefinite period.” The Plenum of the Supreme Court of the Russian Federation, in Resolution No. 63 of December 28, 2006, recommended that courts pay special attention to compliance with these guarantees.

Document fragment

Thus, if the employee appeals to the court or the relevant labor inspectorate, the contract can be recognized as concluded for an indefinite period, and without the condition of probation.

Test workers have the same rights as permanent workers

During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, and local regulations. In practice, the application of this norm is expressed as follows:

the establishment in an employment contract of a lower remuneration for an employee during the probationary period is recognized as inconsistent with the law, since the Labor Code of the Russian Federation does not provide that the remuneration of an employee during the probationary period has any specifics. In the event of a conflict, the employee will be able to obtain the amount of underpayment in court.

So, in LLC " Trading company“A note was made to the staffing table, which indicated that during the probationary period, the manager has the right to reduce the official salary, since the employee has underestimated labor productivity or does not have enough experience and qualifications. The labor inspector conducted an inspection and pointed out this circumstance as a violation of labor legislation. At the same time, the following was noted: in accordance with Article 70 of the Labor Code of the Russian Federation, during the probationary period, the employee is subject to all provisions and norms of the Labor Code of the Russian Federation. Consequently, during this period the employee, in his own way, legal status He is no different from other employees and there is no reason to reduce his salary for this period. In addition, the principle of equal pay for work of equal value cannot be violated (Article 22 of the Labor Code of the Russian Federation). After all, the employee will perform the same work both during the probationary period and after its end. By paying differently for these periods, the employer violates this principle.

From the employer’s position, this issue can be resolved in various ways. For example, when concluding an employment contract with an employee, you can indicate in it as a permanent amount of payment agreed upon for the probationary period. At the end of the probationary period, sign with the employee additional agreement about increasing the amount of payment. Or adopt a provision in the organization on bonuses (additional payments), the amount of which is established depending on the length of service in the company;

During the probationary period, the employee is subject, among other things, to the rules and guarantees regarding the grounds for dismissal at the initiative of the employer. During the probationary period, an employee may be dismissed at the initiative of the administration on the grounds provided for in Article 81 of the Labor Code of the Russian Federation, but additional grounds for dismissal during the probationary period cannot be included in the employment contract, not provided for by law, such as the possibility of dismissal for reasons of “expediency” or at the discretion of management. Such language is often included in employment contracts, but is contrary to the law;

the probationary period is included in the length of service giving the right to annual basic paid leave. If an employee is dismissed after the expiration of the probationary period (or before its expiration), despite the fact that the employee has not worked for the company for six months, the employee is paid compensation for unused vacation in proportion to the time worked in the company.

Special cases

When concluding an employment contract with an employee, it is important to remember that the Labor Code of the Russian Federation excludes the possibility of establishing a probationary period for:

pregnant women and women with children under the age of one and a half years;

persons under the age of eighteen;

persons who have graduated from state-accredited educational institutions of primary, secondary and higher vocational education and are entering work for the first time in their specialty within one year from the date of graduation from the educational institution;

persons elected to elective positions for paid work;

persons invited to work by way of transfer from another employer as agreed between employers;

persons concluding an employment contract for a period of up to two months, and in other cases.

If you establish a probationary period for the above categories of employees, then this provision of the employment contract will not have legal force.

Duration of probationary period

The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.

If you enter into an employment contract with an employee for a period of two to six months, then the probationary period cannot exceed two weeks. The probationary period does not include the period of temporary incapacity for work of the employee and other periods when he was actually absent from work. The duration of the probationary period is set at the discretion of the parties, but cannot be longer than that established by law.

In practice, the employer often extends the probationary period during the period the employee undergoes the test agreed upon when concluding the employment contract. This is against the law. And, if the employer does not decide to dismiss the employee before the expiration of the period specified in the employment contract, the employee will be considered to have passed the test.

Note that the legislation in some cases establishes a longer probationary period compared to the established Labor Code, in particular for civil servants (Article 27 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation”).

Result of the pre-employment test

The Labor Code of the Russian Federation establishes: “If the probation period has expired and the employee continues to work, then he is considered to have passed the test and subsequent termination of the employment contract is allowed only on a general basis.” That is, if the employer considers the employee suitable for the position for which he was hired, then no additional documents are required - the employee continues to work on a general basis.

Document fragment

If the employer decides to dismiss a new employee, then a certain procedure must be strictly followed and the necessary documents must be drawn up:

notification of an unsatisfactory test result must be drawn up in writing in two copies: one for the employee, the second for the employer, and announced to the employee under his personal signature.

What to do if the employee refuses to accept the notice? In such a situation, the employer can take the following actions. It is necessary to draw up a corresponding act in the presence of several employees of this organization. Employee-witnesses will confirm with their signatures in this act the fact of delivery of the notice to the employee, as well as his refusal to certify this fact in writing. A copy of the notice can be sent to the employee’s home address by registered mail with return receipt requested. At the same time, it is important to comply with the deadlines established by Article 71 of the Labor Code of the Russian Federation - a letter of notice of dismissal must be submitted to the postal authority at least three days before the expiration of the probationary period established for the employee. Date postal item determined by the date on the postmark on the receipt and the notification of delivery of the letter returned to the employer. The notice of termination of the contract during the probationary period must have all the necessary characteristics of a document, namely: date, reference number, signature of the person authorized to sign the relevant documents, as well as a seal intended for registration of documents of this organization;

In the notice given to the employee, the reason for dismissal must be correctly and legally formulated. The wording must be based on documents confirming the validity of the decision made by the employer;

Judicial practice shows that when considering disputes about dismissal due to an unsatisfactory test result, the courts require the employer to confirm the fact that the employee is unsuitable for the position held.

To confirm the employee’s inadequacy for the position held, moments when the employee did not cope with the work assigned to him or committed other violations (for example, labor regulations, etc.) must be recorded. The specified circumstances must be documented (recorded), if possible, indicating the reasons. In addition, it is necessary to require written explanations from the employee about the reasons for the violations he committed. From the point of view of a number of specialists, when dismissing under Article 71 of the Labor Code of the Russian Federation (due to an unsatisfactory test result), proof of the employee’s professional inadequacy for the position held is required. And if an employee violates during the probationary period labor discipline(for example, he committed absenteeism or otherwise demonstrated an unfair attitude towards work), then he must be dismissed on the basis of the relevant paragraph of Article 81 of the Labor Code of the Russian Federation.

The following documents may be accepted as documents confirming the validity of dismissal: disciplinary offense, a document confirming the non-compliance of the quality of the subject’s work with the production standards and time standards adopted in the organization, an explanatory note from the employee about the reasons for the poor quality of the work assignment, written complaints from clients.

Citizen I. filed a lawsuit against kindergarten for reinstatement as a teacher, payment for forced absence time, compensation for moral damage, citing the fact that she was hired on the basis of an employment contract with a probationary period of 2 months and was unreasonably dismissed as having failed to complete the probationary period. The court rejected the claim. The panel of judges left the court's decision unchanged. In accordance with Article 70 of the Labor Code of the Russian Federation, when concluding an employment contract, the agreement of the parties may stipulate the testing of the employee in order to verify his compliance with the assigned work. The probationary clause must be specified in the employment contract. According to Article 71 of the Labor Code of the Russian Federation, if the test result is unsatisfactory, the employer has the right, before the expiration of the test period, to terminate the employment contract with the employee, warning him about this in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. In the case, it was established that citizen I. was hired as a teacher with a probationary period of 2 months, and an employment contract was concluded with her in writing. The grounds for dismissal included a written warning, reports from the children's parents, kindergarten employees, kindergarten reports, and a collective statement from parents. junior group, minutes of the meeting of the kindergarten council. From the case materials it was clear that a written warning about her dismissal was drawn up. The warning indicates the reasons that served as the basis for recognizing the plaintiff as having failed the probationary period. The plaintiff refused to accept the warning, about which a report was drawn up.

The assessment of business qualities and how well an employee copes with the work assigned to him directly depends on the field of work and the specifics of the work performed. Based on the specifics of the work, the conclusion about the test result can be based on various data. So, in production sector, where the result of labor is a specific materialized result, it is possible to clearly determine how well the work is performed; in the service sector, you can take into account the number of customer complaints about the quality of a particular service. The situation is more complicated when the work involves intellectual work. In this case, the quality of execution of the manager’s instructions, compliance with deadlines for completing tasks, the employee’s fulfillment of the total amount of proposed work, and the employee’s compliance with professional and qualification requirements should be analyzed. The new employee’s immediate supervisor must complete the relevant documents and send them to the head of the company.

As you can see, the procedure for dismissing an employee based on test results requires a certain formality from the employer. In addition, the legislation in any case provides the employee with the right to appeal the employer’s decision in court.

It is also necessary to say about the employee’s right to terminate the employment contract: “If during the probation period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, having warned the employer about this in writing in three days." This standard is important for the employee, since it is fundamentally important for many potential employers to know why the applicant left his previous job so quickly.

* * *

The author believes that with the help of a probationary period, the employer can see the hired employee “in action”, and the employee, in turn, can evaluate the compliance of the proposed job with his interests and expectations. The legislation clearly defines the conditions for applying the probationary period. And since the employee is labor relations is a socially vulnerable party, the Labor Code of the Russian Federation establishes a number of guarantees for workers when passing the test, and the procedure for dismissing an employee due to an unsatisfactory test result is quite formalized.

The legislation gives the employee the right to appeal in court the employer’s decision to dismiss based on the results of the test. In this case, the court will check the legality of establishing a probationary period, the correctness of execution necessary documents and employer compliance with all legal aspects. Based on this, both the employee and the employer have the right to decide for themselves on the advisability of applying and the conditions for completing the probationary period.

1 See article by A.A. Atateva “Fixed-term employment contract in a new way” on page 23 of magazine No. 2` 2007.

2 Resolution of the Plenum of the Supreme Court of the Russian Federation No. 63 of December 28, 2006 “On introducing amendments and additions to the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”

3 Clause 11 of the Review of Judicial Practice of the RF Armed Forces for the third quarter of 2005 in civil cases. The text was not officially published.