Dismissal during a probationary period at the initiative of the employer: reasons for breaking the employment contract. How to properly fire an employee without his desire according to the Labor Code of the Russian Federation: step-by-step instructions, entry in the labor record (Article

Dismissal during a probationary period at the initiative of the employer (Labor Code of the Russian Federation)

How to fire an employee during the probationary period if he did not fulfill his assigned duties in good faith, was systematically late or was absent?

This can be done without waiting for the end of the trial period.

If an employee has not completed the probationary period, how to dismiss and how to correctly formalize the dismissal (who has not completed the probationary period) is set out in detail in Article 71 of the Labor Code of the Russian Federation.

If an employer dismisses him during a probationary period, violating the established procedure, the probationer has the right to restore justice through court proceedings and recover monetary compensation.

IMPORTANT: Dismissal during the probationary period at the initiative of the employer must be formalized in accordance with the procedure established by law, otherwise the subject may challenge in court the management’s decision to not complete the probationary period. Dismissal in this case will be illegal and may require compensation from the organization.

Help on how to properly fire an employee during a probationary period! Be sure to indicate in the order (on the dismissal of an employee during a probationary period at the initiative of the employer) and the contract the duration of the trial period! If this information is contained only in the order, you don’t have to ask the question of how to fire an employee who has not passed the probationary period, because the newcomer is automatically considered hired without a probationary period.

Can they be fired during IP?

At the employee's initiative

If during the course of the IP the employee comes to the conclusion that this employer, or position, or working conditions are not suitable for him, then he has the right to terminate the employment relationship without waiting for the end of the probationary period (Article 71 of the Labor Code of the Russian Federation (LC RF).

If the candidate decides to say goodbye to the employer, then he must warn him about this by drawing up a written statement 3 days before the date of dismissal (Article 71 of the Labor Code of the Russian Federation). The document indicates the personal desire of the employee as the basis for dismissal. At the moment of the dismissal date specified in the document, the employee has the right to stop performing his labor functions.

Read about dismissal during a probationary period at the initiative of an employee here.

At the initiative of the employer

Having assessed the employee’s work during IP, the employer may come to the conclusion that the new employee does not meet the requirements of the position and cannot cope with the assigned tasks. Then, on the basis of Art. 71 of the Labor Code of the Russian Federation, he has the right to dismiss a candidate during the probationary period. The employer notifies of his decision in writing three days before dismissal, justifying his decision in the document.

If an employee does not agree with the decision to dismiss, he can file a claim with a judicial authority to appeal it.

Read more about dismissal during a probationary period at the initiative of the employer in our article.

By staff reduction

An employee who works for a company during the probationary period, like all other employees on staff, may be laid off. The Labor Code does not prohibit such actions on the part of the employer.

If the employer has decided to reduce staff in the organization, then first of all, he must document his desire:

create a complete list of employees who are subject to layoffs;
find out which employee has a preferential right to avoid layoffs (Article 179 of the Labor Code of the Russian Federation);
notify each employee in writing.

Employees, including those on probation, receive a notice from the enterprise containing the following information:

the date from which the employee ceases his work at the enterprise;
the reason why the employee is fired;
vacancies that an employee can take instead of his position in order not to be fired (Article 180 of the Labor Code of the Russian Federation).

The employer must offer the employee who is being laid off other positions at the enterprise, even if the employee has not yet completed the full probationary period.

The employee must receive the notice from the employer in person, confirming familiarization with the document with his signature. Having familiarized himself with other open jobs, he can refuse these options, and then he will be fired on the specified date, or agree to be transferred to another position.

Employees must be notified of the upcoming layoff no later than 2 months before dismissal. If an employment contract with an employee is concluded for a period of less than two months, then such employee must be notified at least three days in advance (Article 292 of the Labor Code of the Russian Federation).

An employee undergoing a probationary period is considered a full-time employee, and therefore may qualify for cash payments related to layoffs at the enterprise:

severance pay;
salary for hours worked;
compensation for unused vacation.

Causes

The reason for dismissal during a probationary period at the initiative of the employer may be one of those specified in Article 81 of the Labor Code of the Russian Federation. An employee who has not passed the probationary period must know the reason for failure to pass.

Reasons for failure to complete the probationary period:

disciplinary violations of the employee;
inconsistency between the newcomer’s qualifications and the position held;
bankruptcy or liquidation of the company;
reduction of staff in a specific department or the entire organization as a whole;
transfer of an employee to another organization with the consent of the parties;
change of owner of the company, and the employee’s reluctance to continue cooperation with him;
the company moves to another location and the employee refuses to follow the employer;
unilateral change by the employer of the terms of the employment contract and the employee’s refusal to comply with them;
other grounds for failure to complete the probationary period.

We will consider below how to formalize and confirm an unsatisfactory result.

REFERENCE: Let us remind you that dismissal due to failure to complete the probationary period (Article 71 of the Labor Code of the Russian Federation) is legal, and also according to the Labor Code of the Russian Federation, the grounds for dismissal due to failure to complete the probationary period must be recorded.

It means that:

The fact of a violation can be confirmed by witnesses.
There is evidence of the trainee's guilt.
There are written explanations from the employee.
The subject is familiar with the drawn up acts.

Is it possible to terminate an employment contract without giving reasons?

The dismissal procedure, as well as the hiring procedure for an employee, must comply with legal standards. Thus, a manager cannot initiate the dismissal of an employee without a legal reason.

An employment contract between an employer and an employee can be terminated only if the grounds specified in Art. 77, , 81 Labor Code of the Russian Federation.

Dismissing an employee without specifying a reason is considered illegal and violates the employee’s labor rights. In such cases, the dismissed person can take legal steps to assert his rights.

Notice of termination of contract

If, nevertheless, a decision is made to dismiss someone who has not completed the probationary period, step-by-step instructions will help consider the following issues:

When is it served?

Notice of termination of the employment contract during the probationary period is provided in advance to the employee for review. The notice period for dismissal during the probationary period should not exceed 3 days before the final payment.

It is advisable to attach copies of documents confirming unsatisfactory performance to the notice of dismissal of an employee who has not completed the probationary period.

Notice of dismissal as someone who has not completed the probationary period is drawn up in two copies.

Compiled by whom?

A notice of dismissal (if the probationary period has not passed) is drawn up on behalf of the supervisor by an employee of the HR department based on available evidence of violation of discipline or poor performance of duties.

How to correctly write a notice of dismissal during a probationary period: sample

The notice of failure to complete the probationary period (sample below) is filled out on the organization’s letterhead and must refer to the article of the Labor Code of the Russian Federation, which contains the grounds for dismissal during the probationary period.

The structure of the document is as follows:

Notification header. Contains the name and details of the company.
The title of the document is “Notice of termination of the employment contract.”
Serial number and date of notification.
Full name of the employee, his position and personnel number.
Link to documents confirming the fact of unsatisfactory performance of duties.

The date and number of each document must be indicated.

Manager's visa, date and seal of the organization.
Column for the employee's signature.

Conditions and reasons

The criteria by which an employee’s suitability for a position is assessed are not provided in the Labor Code. But in order to accurately formulate the reason for a person’s dismissal, they must be defined.

When assessing an employee, attention is usually paid to the following points:

health status;
knowledge level;
work experience in a specific specialty;
professional skills.

Also during the internship, management checks the candidate’s personal qualities: discipline, punctuality, diligence, and communication skills. To dismiss an employee during a probationary period, certain conditions and compelling reasons are required.

Among the reasons for the decision of the company management to dismiss are the following:

absence from work for more than four hours in a row without a good reason, multiple absences;
ignoring safety rules and requirements;
non-compliance with labor discipline;
the employee disclosed a trade secret;
the employee’s behavior does not correspond to professional ethics;
being at the workplace under the influence of drugs or alcohol;
committing a criminal offense during the internship period;
complete or partial failure to fulfill official duties.

But dismissal for one of the reasons listed above can be made subject to the availability of evidence. Otherwise, the employee has the right to apply to a judicial organization in order to protect his interests.

Also, dismissal of an employee during the internship period is possible for the following reasons:

liquidation of the enterprise;
staff reduction;
there was a change in the owner of the enterprise and the employee refused to cooperate with the new owner;
the employer changed the terms of the employment contract unilaterally, the trainee does not accept them;
the company moves to another region, the employee refuses to follow the employer.

How to fire an employee on a probationary period without his desire according to the law?

Can they be fired during a probationary period? They can, but the employee has the right to refuse to sign the document if he does not agree with its contents. In this case, an act of refusal is drawn up with 2 witnesses.

Most often, the “trial period” ends with dismissal due to systematic disciplinary violations (absenteeism, tardiness) and insufficient qualifications of the subject.

If a person is on a probationary period, how to fire him without litigation, the Labor Code of the Russian Federation will help.

IMPORTANT: A notice of dismissal of an employee during a probationary period at the initiative of the employer must contain references to all documented facts of violations and poor quality work.

At the initiative of the employee

This period is given to the employee to get used to management, work, conditions, and the team. Is it possible to quit during a probationary period? If a person is not satisfied with something, he has the right to leave in a simplified manner. Compared to the usual termination of a contract, in this case you need to notify your superiors 3 days in advance.

How to quit during a probationary period? The employee may not wait for it to finish. The application must be submitted within the notice period. If you do this after the end of this period, then termination occurs in the usual manner, when you have to work out 14 days. Then, dismissal during the probationary period is carried out in the same way as a simple termination of employment at personal request. These are all the nuances that need to be taken into account in order to quit during the probationary period.

Order to dismiss someone who has not completed the probationary period: sample form

How to fire during a probationary period at the initiative of the employer?

Based on the signed notice of dismissal during the probationary period at the initiative of the employer, the personnel officer draws up an order in the T-8 form.

The header of the order contains the name and details of the organization, serial number and date of preparation.

Next, the article of the Labor Code of the Russian Federation is indicated, which is the basis for dismissal during the probationary period, as well as the date and number of the document confirming the employee’s violation of the job description.

At the end of the document the date of termination of the contract is indicated and certified by the signatures of the parties.

An order for dismissal before the expiration of the probationary period must be registered in the order book of the organization.

You can view the form for notice of dismissal as having failed the probationary period (sample below).

Sample (form) of notice of dismissal of an employee who has not completed the probationary period.

Order to dismiss someone who has not completed the probationary period.

The legislative framework

The possibility of dismissal during a probationary period is regulated by the Labor Code and collective agreements. Article No. 71 of the Labor Code of Russia states that if an employer is dissatisfied with the work activity of a subordinate who is undergoing an internship, then he has every right to terminate the contract with him ahead of schedule. He is obliged to notify the candidate for the vacant position about this in advance.

According to Article No. 70, a probationary period is not established for the following categories of citizens:

under the age of majority;
hired on a competitive basis;
women who are raising a child under 1.5 years old;
specialists who have received specialized education at an accredited state educational institution and are employed within a calendar year after receiving their diploma;
employees with whom a seasonal contract has been concluded for a period of up to two months;
persons who are transferred by agreement of employers from one organization to another;
workers who move within a company from one position to another.

It is prohibited by law to dismiss such employees at the initiative of the employer due to the fact that they have not completed an internship. If an employee becomes pregnant during the probationary period, then the company management has no right to terminate her employment contract without the woman’s consent. This is stated in the first part of Article No. 261 of the Labor Code of Russia.

A probationary period before employment is not required by law. Therefore, if it is not specified in the contract, then it is considered that the person is hired from the first day, but, as a rule, managers arrange a check.

Handing over a work book

Entry in the labor record upon dismissal for failure to complete the probationary period

After a decision is made to dismiss an employee as having failed to complete the probationary period, an order for dismissal is signed as someone who has not completed the probationary period.

An entry in the employment contract about the termination of the contract is made by a specialist from the personnel department, certified with his own signature and seal of the organization.

Be sure to indicate in the entry the article of dismissal (did not complete the probationary period) and the document that served as the basis for dismissal!

The employee must sign the work book as a sign of familiarization, as well as in the journal for recording the issuance of work books when it is issued.

Nuances

If you intend to resign during the probationary period, then you need to familiarize yourself with some nuances. The employer cannot demand disclosure of the reason for the decision. The calculation must include compensation for unspent vacation, salary and severance pay.

The employee is paid off on the last day of performance of work duties. The probationary period must be included in the work experience, so an entry is made in the work book. If this period is not specified in the contract, then it is 2 weeks.

Is it possible to fire an employee after the end of the term?

An employer may justifiably dismiss an employee by giving him prior notice at any time during the probationary period. Afterwards, there is no point in thinking about how to fire before the end of the probationary period, because as soon as the period is over, the trainee automatically becomes part of the organization’s staff.

According to the Labor Code of the Russian Federation, an employer cannot now fire a specialist for unsatisfactory test results, because the work is assessed by other criteria.

As you can see, the procedure for dismissing an employee during a probationary period is quite simple. The article examined in detail how to fire during the probationary period and under what article to fire an employee who has not completed the probationary period. Guided by the information received, you will be able to protect yourself from lawsuits and raids by labor inspectors.

Is it possible to extend the probationary period?

As mentioned above, extending the probationary period or establishing a second one immediately after the first is prohibited. But in this case, we were talking only about the option when the employer, based on the results of the probationary period, cannot decide whether to keep the employee at the enterprise or fire him - then extending the probationary period is really impossible.

But you need to know and remember that the probationary period includes only those days when the employee was present at the workplace. If, during the test, the employee, for example, took part in military training or was sick - that is, was actually absent from the workplace, albeit for a good reason - these days are not counted towards the probationary period. Therefore, if, according to the contract, the probationary period ends, and the employee has “missed” days, an order can be issued to extend the probationary period.

Such an order must contain a reference to the reason why the probationary period is being extended; it is also advisable to attach explanatory documents from the employee to the order, for example, a copy of a sick leave certificate or a call to military training.

Only in this case is it allowed to extend the probationary period.

Documents required to justify dismissal during the probationary period

The legality of dismissal under existing conditions is regulated by Article 71 of the Labor Code of the Russian Federation. All reasons for dismissal must be supported by written evidence. Without them, dismissal is considered illegal, and the employee can appeal it in court.

Evidence of unsatisfactory testing is:

acts on marriage committed by the employee;
reports on the candidate’s non-fulfillment or poor performance of his work duties;
a negative reference from the employee responsible for supervising the candidate’s probationary period;
if available, extracts from the test control log;
complaints from team members;
customer complaints in the book of complaints and suggestions (if available);
orders, acts, notices of disciplinary sanctions (if any).

Dismissal procedure

Some facts

Russians over 45 years of age are least likely to leave their employers during a probationary period (14% - of their own free will, 4% - at the will of the employer). Among 45-year-olds there is also the highest percentage of applicants who have never applied for a job with a probationary period (13%).

The correctness of the procedure for dismissing an employee during the probationary period or immediately after it is of great importance. Failure to comply with any point may become a reason for appealing dismissal in court.

Let's consider the procedure for dismissal:

the employer must send the dismissed employee a written notice of dismissal in 2 copies no later than 3 days before the end of the probationary period;
the employee must read the notice and sign the employer’s copy. If the dismissed person does not want to accept the notice, then this fact must be recorded in a special act in the presence of 2 witnesses;
further, the employer must issue an order to dismiss the employee, listing the facts that served as the reason for severing the employment relationship with him;
The company’s accounting department must calculate it on the last day of the dismissed employee’s stay at work:
issue wages for hours worked,
issue compensation for unused vacation;

The personnel department or the head of the enterprise must enter into the work book a statement about the reason for dismissal (unsatisfactory test results) and issue it to the dismissed employee.

Read the regulations on passing the probationary period at the link https://otdelkadrov.online/3018-polozhenie-poryadok-prohozhdeniya-ispytatelnogo-sroka

Who cannot be fired during the probationary period

The law provides for special categories of citizens who should not be subject to checks during official employment. The following cannot be placed on a probationary period and, accordingly, dismissed under Article 71 due to failure of the test:

pregnant women and those with young (up to 1.5 years of age) children;
persons who have not yet turned 18 (officially, according to the law, employment can be obtained from the age of 14);
applying for a specialized position in the first year after graduation;
persons who were selected on the basis of a competition;
invited from another organization;
seasonal workers with less than two months' contract.

This is important to know: Application for reduction of working hours

What is enshrined in law

The probationary period is established by law so that both parties to the employment contract are convinced that they are satisfied with this cooperation. If it turns out that this is not the case, each of them has the right to wish to terminate the concluded agreement at the end of this period. At the same time, legal norms must be fully observed in order to exclude the possibility of violating anyone’s rights.

Next, the procedure for dismissing an employee based on the results of the probationary period will be discussed in detail. Having been dismissed on this basis, a citizen has the right to know what exactly was the reason for such a decision by the employer.

If the probationary period is over, but the employee continues to perform official duties, the test is considered successfully completed. The administration of the enterprise is not obliged to additionally notify the citizen about this. However, most employers prefer to inform the employee of the test in writing.

To prevent infringement of the interests of employees, the law provides for the maximum possible duration of the probationary period.

It amounts to:

for senior employees (managers, deputies and heads of branches) – six months;
for everyone else – 3 months.

An exception is made for certain categories of workers, whose activities are regulated by laws at the federal level. At the request of the employer, the verification period can be shortened, but it cannot be increased.

If during the probationary period the employee was absent for a valid reason (for example, did not show up due to illness), Part 7 of Art. 70 of the Labor Code of the Russian Federation prescribes the exclusion of these periods from the test period.

Remember! Time of absence due to a business trip is included in the probationary period, since the employee was busy performing official duties.

Protecting the interests of the employee, the Labor Code of the Russian Federation gives an employee undergoing testing equal rights with citizens hired for permanent work (Article 70). During this period, the employee performs normal routine duties.

At the same time, the procedure for dismissing a person who has not passed the verification has a number of differences from that used in ordinary cases:

the employee is notified not 2 weeks in advance, but 3 days in advance (calendar days are taken into account);
after the end of the probationary period, the employee can be dismissed immediately, without any work;
Continuation of work after the end of the verification period means the beginning of work on a permanent basis in full compliance with the provisions of labor legislation.

The legislator allows the dismissal of an employee who is not suitable for the employer at any time during the trial. The grounds are usually similar to the general reasons for termination of an employment contract.

The fact that a citizen is being tested does not give the administration the right to pay him less for his work. If such an approach is fundamentally important, employers stipulate separately in the contract the amounts of salary and bonus payments.

There is also often a provision for an increase in pay when applying for a permanent job based on the results of a passed test.

Upon learning that the employer “owes him nothing,” the failed employee must verify that the following payments have been made:

payment for the period of work (this period will be taken into account when calculating the total length of service);
payment for time of incapacity (if the employee was sick and presented sick leave);
compensation for the required part of the vacation at the rate of 2.33 days of rest per month of work (15 or more days worked are equal to a full month of work).

Know! When calculating compensation for vacation, the rule about the need to work 6 months to receive vacation does not apply.

The legislator does not provide for the payment of severance pay upon dismissal of a person who has not passed the test.

Deadline for payment of vacation pay according to the Labor Code.

Is it possible to fire a pregnant woman at her own request? Read here.

Under what article is one fired for absenteeism, read the link:

Options for dismissal when passing the test

The initiator of termination of the working relationship between the company and the employee can be either party. This right is enshrined in the Labor Code of the Russian Federation. When dismissing during the probationary period, there are some nuances. The dismissal procedure during this period is simplified.

For example, in order to terminate a contract, it is necessary to notify the other party in writing 3 calendar days in advance. The employee does not need to work the 2 weeks required by labor law upon dismissal on a general basis. After 3 days, he will be provided with a full payment and issued a work book.

The video discusses the features of dismissal at the initiative of the employer