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In order to verify the suitability of an employee for the assigned work, the employer may provide for a probation clause in the employment contract. About how long such a test can be and about persons for whom a probationary period cannot be established, we will tell in our consultation.

Probation period for employment

The maximum probationary period under the Labor Code is 6 months. But a test of such duration may not be established for all employees, but only for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of the organization. In other cases, the maximum total testing period for employees is 3 months (part 5, article 70 of the Labor Code of the Russian Federation).

A special probation period is established for employees with whom an employment contract is concluded for a period of 2 to 6 months. The maximum duration of the probationary period for employment in this case is 2 weeks (part 6 of article 70 of the Labor Code of the Russian Federation).

Please note that if the employment contract does not contain a probation clause, it is considered that the employee has been hired without probation.

And if the employee was actually allowed to work without an employment contract? Recall that when the employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than 3 working days (part 2 of article 67 of the Labor Code of the Russian Federation). In this case, it is possible to include a test condition in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work (part 2 of article 70 of the Labor Code of the Russian Federation).

If an employee does not want to undergo a probationary period, which the employer insists on, then an employment contract with such an employee is not concluded.

Please note that even with the consent of the employee, the employer does not have the right to establish a trial period of a longer duration than is allowed by the Labor Code of the Russian Federation and federal laws. On the other hand, within the maximum duration of the probationary period, the employer may set any period or refuse to test the employee at all.

How is the probationary period calculated?

The period for which the employee is put on probation is calculated from the day the work began and includes only the periods during which the employee actually worked. If the employee was absent from work (for example, he was on sick leave or on vacation at his own expense), the specified time does not count towards the test period (part 7 of article 70 of the Labor Code of the Russian Federation). That is, in fact, the probationary period is extended.

Who is not eligible for probation?

The employer is not entitled to establish a probationary period, in particular, for the following categories of persons (part 4 of article 70, part 1 of article 207 of the Labor Code of the Russian Federation):

• pregnant women;
• women with children under the age of 1.5;
• persons invited to work in the order of transfer from another employer;
• persons who have received secondary vocational education or higher education in state-accredited educational programs and for the first time come to work in their specialty within 1 year from the date of graduation;
• persons who have successfully completed apprenticeship, when concluding an employment contract with the employer, under the contract with which they were trained;
• persons under the age of 18;
• persons concluding an employment contract for a period of up to 2 months;
• persons elected by competition to fill the relevant position.

Recall that the employee who is being tested is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations of the employer (

When a person applies for a job, they are invited to be interviewed. This is in case he has never worked in this company. If a potential employee successfully passes the interview, skills and experience correspond to the vacancy, he is hired. However, this is not yet the final success.

Probation period - what is it?

The probationary period for employment is the period when a new employee takes up duties in the company for the first time, and his work is evaluated by a potential permanent employer. The trial period is a chance for both parties to understand:

1. Employer - whether the employee is suitable for the position.
2. For the employee - whether the team, duties and working conditions are satisfied.

Trial period - pros and cons

Working with a trial period has its advantages and disadvantages. Hiring and retaining valuable employees is the biggest challenge for HR professionals. The introduction of a probationary period is a kind of guarantee of hiring a suitable employee. Benefits for the employer:

1. The ability to evaluate the effectiveness of an employee without significant risks.
2. The right to terminate the probationary period without any consequences.
3. No significant financial investment (such as benefits) before the end of the "examination" period.

There are also significant disadvantages:

1. An employee may leave before the expiration of the probationary period, leaving with a “new” vacancy.
2. The risk of wasted finances if:

• the employee decided to leave;
• the candidate did not qualify.

For the applicant, the probationary period is also replete with pluses and minuses. Undoubted advantages:

• a chance to "try on" the position;
• the opportunity to see the company from the inside;
• lack of serious obligations when leaving.

Not so pleasant aspects:

• reduced wage rate;
• the risk of "flying out" and being left without a job;
• lack of a full package of benefits.

To avoid negative aspects when applying for a job with a probationary period, you need to get answers from the employer to the following questions:

1. How long will the trial period last?
2. Who will evaluate and when?
3. If a reduced salary is offered during the trial period, when will it increase?
4. How many people were taken for testing for this position, how many flew out?
5. What are the specific responsibilities to be performed?

Before agreeing to a trial period, it is important:

1. Understand all terms and conditions.
2. Be willing to do more to impress.

The usual thing is that employers expect more from newcomers - doing work that is not directly related to the job description. For example, after hours or little things like "running for coffee" and "change the cartridge in the printer." It's okay if it's in moderation. In such situations, the ability is tested for:

• to be active;
• work in a team;
• meet face to face with .

Probation period

The probationary period must be specified in the employment contract. According to the Labor Code of the Russian Federation, it can last up to 3 months, no more. During this period, the employee has all rights in accordance with labor law. A trial period of 6-12 months can be assigned to senior positions (director, branch manager) and their deputies, as well as to:

• chief accountant;
• police officer;
• civil servant;
• law enforcement officer.

It is not allowed to extend the probation. If the trial period expires and the employee continues to work, it is considered that he passed it successfully. Some categories of applicants are not subject to a probationary period:

• pregnant women;
• mothers with children under 1.5 years old;
• employees under the age of 18;
• employees with an employment contract of less than 2 months.

Didn't pass the probationary period - what to do?

Not passing the probationary period is not the end of the world. In the event that all issues were discussed before it began, and the “failure” is honest on the part of the employer, it is worth moving on:

• calm down first;
• then rest;
• update resume;
• start searching - the dream job is yet to come!

How to quit on probation?

Getting fired during probation works both ways. The law states that the employee has the right to terminate the employment contract during the trial period on his own initiative:

1. 3 days in advance of your decision.
2. Writing a letter of resignation.

It is not necessary to tell the employer about the reasons for leaving - a simple written notification will suffice. However, there are some points:

1. Working off. In the case of permanent work, it lasts two weeks. If you leave of your own accord during the test, it is reduced to three days.
2. When dismissed during a probationary period, a financially responsible person must transfer all cases to the receiver.

Can they be fired on probation?

Dismissal on probation at the initiative of the employer and in connection with an unsuccessful result is possible. But certain rules must be observed, the employer must:

1. Establish clear criteria for evaluating an employee for a probationary period.
2. Submit work assignments in writing.
3. Notify at least 3 days before the date of dismissal.
4. Provide a reasonable explanation of why.

According to labor legislation (Labor Code of the Russian Federation), the employer can establish a certain probationary period for a new employee.

At the same time, its duration and procedure for registration are strictly regulated by the provisions of the Labor Code of the Russian Federation.

Also, the articles of the law indicate the rights of the tested employee and the procedure for dismissal during this period.

Knowing all the legal aspects of this issue will help to avoid conflict situations. or even litigation between management and a new employee.

Let us consider in more detail all the requirements of the law that relate to the trial period.

If the management of the enterprise needs time to make sure that a new employee is suitable for the corresponding position, then it is necessary to follow the statutory hiring procedure, the probationary period shall not exceed the time limits specified by law..

According to the Labor Code of the Russian Federation, this period can be appointed only with the consent of both parties.

The agreement must be necessarily fixed in the employment contract or additional agreement that is attached to it. Also, this moment must be indicated in the order for registration.

If the employee has begun to perform his duties, and the agreement on the probationary period is not reflected in the employment contract or additional. agreement, it is considered that no time limit has been set.

It is worth noting that the mention of such a period only in the order for the admission of a new employee to the state has no legal force.

It is also illegal to include this item in the main or additional. agreement after the employee has already begun to perform his duties.

Probation period information is not indicated in the work book.

Trial period

The law does not provide for minimum values ​​​​of the special period, but the maximum probationary period for employment is strictly defined.

Depending on the terms of the employment agreement and the professional category of the employee, it may have a different duration:

• in standard cases, when an open-ended contract is concluded - no more than 3 months;
• for senior managers, their deputies, ch. accountant allowable duration increased to 6 months;
• for a duration of less than 60 days, the test is not provided;
• for urgent agreements from 2 to 6 months no more than 14 days;
• for contracts drawn up for a period of more than 6 months, standard conditions apply, which are indicated in the first paragraph of the list.

Thus, labor law clearly defines what probationary period for employment should be established.

The period does not include the time when the employee did not perform his duties (sick leave, vacation).

In other cases, the employer cannot independently extend the probation period.

When the administration is completely satisfied with the employee hired, the test time can be reduced at the initiative of the employer.

Mandatory notification of a new worker about the successful completion of the test is not provided by law.

After this period, if the new employee continues to work, he is considered to have successfully passed the vocational test.

Employment verification period

In some cases, the law prohibits the establishment of a verification period work for new employees.

An employment contract with a probationary period cannot be concluded with the following categories of applicants:

• with pregnant women;
• with persons who previously worked at the enterprise and transferred to a new position;
• with minors;
• with women who have children under one and a half years old;
• with specialists who came to work within the first year after graduation;
• with employees who, by agreement with management, transferred from other organizations.

Salary during probationary period

During the entire time when a new employee is being tested, he has the same rights and obligations as other employees of the enterprise.

That is, he must comply with the internal regulations and adhere to the rules of labor discipline. See more about types of disciplinary action.

It is also subject to labor law, local acts,.

That is, in relation to such an employee, all guarantees must be observed, including social. plastic bag. Therefore, the employer is obliged to pay the sick leave in full.

Passing the test at the beginning of labor activity at the enterprise cannot serve as a basis for establishing a lower wage.

In case of violation of this norm and in the event of a conflict, the employee can claim the amount of underpayment through the court. See more details on how to file a lawsuit.

During the test, the employment contract may be terminated at the initiative of the employer or employee.

In this case, both one and the other party must notify 3 days before.

In the application for termination of the contract of his own free will, the employee is not required to indicate the exact reasons for his decision. Also there is no need for a preliminary two-week development.

In this case, it is 3 days. In all other respects, the execution of the application is the same as for permanent employees of the enterprise. Within three days from the date of notification, the enterprise must pay the resigning money earned and compensation for unused vacation.

In cases where the termination of the agreement occurs at the initiative of the management, the employer must have evidence on the basis of which such a decision was made.

That is the notice must clearly state the reasons for the conclusions about the non-compliance of the employee enterprise requirements.

The signed document is given to the employee. If necessary, it includes applications that justify such a decision.

These can be copies of reports, acts, orders, explanatory notes, protocols of test results or exams. Read more about the types of disciplinary action.

In case of refusal to receive notification, an act is drawn up in the presence of witnesses. If the employee does not agree with the announced results, he can petition the court or the labor inspectorate.

In general, the labor code quite accurately regulates all aspects related to documenting and passing the probationary period. And in order to avoid conflict situations, the employer and employee only need to know the relevant regulations.

Frequently asked questions about the probationary period when applying for a job

Can an employee's probationary period be extended?

On practice there is indeed a legal possibility to extend the probation period worker. Days when the employee did not perform his official duties for any reason (illness, time off, etc.) are not included in the probationary period.

In the event of such a situation, it is imperative to document the extension of the probationary period in documentary form, since the dates indicated in the order and in the employment contract will not coincide with the actual end date of the probationary period.

To do this, an order is issued to extend the probationary period, in which they refer to a document that confirms the absence of the employee at his workplace during the probationary period.

Is the probationary period considered completed if the employee is transferred to the probationary period?

According to Art. 70 of the Labor Code of the Russian Federation when concluding an employment contract, by agreement of the parties, it may contain a condition is provided for testing an employee in order to verify compliance with the assigned work.

It should be noted that labor legislation does not provide grounds for recognizing an employee as having passed the test ahead of schedule, and the only basis for recognizing an employee as having passed the test is the expiration of the test period.

If the trial period has expired, and the employee continues to work, then he is considered to have passed the test (part three of article 71 of the Labor Code of the Russian Federation).

Article 72.1 of the Labor Code of the Russian Federation, which establishes the rules for transferring to another job, does not talk about changing any other terms of the employment contract, except for the terms of the place of work or the terms of the labor function.

Thus, after transfer to another job, the probation condition continues to be valid until the expiration of the probationary period.

The probationary period is currently not set for employees only by a lazy employer. Even if its use is unlawful, the employer, just in case, prefers not to remove it from the standard form of the employment contract. At the same time, only a few have learned to correctly use this condition for parting with employees.

The ability to establish a test for employment is provided for by Art. 70 of the Labor Code of the Russian Federation. Under the test, according to this article, is understood the verification of the employee for his compliance with the assigned work.

Basics of establishing a test

When fixing the condition of a probationary period in an employment contract, one should remember about the restrictions and prohibitions determined by the Labor Code of the Russian Federation. So, a test for employment is not established for (part 4 of article 70 of the Labor Code of the Russian Federation):

- persons elected on the basis of a competition for the corresponding position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;

- 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 in state-accredited educational programs and for the first time come to work in the specialty they have received within one year from the date of receiving vocational education of the appropriate level;

- persons elected to an elective position for paid work;

- persons invited to work in the order of transfer from another employer as agreed between employers;

- persons concluding an employment contract for a period of up to two months;

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

If the probationary period, in violation of the prohibition, is established by the employment contract, then it should be borne in mind that the probation condition will not apply, and the dismissal of the 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) testing 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 when the 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 test condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work. The literal interpretation of this norm does not allow the employer, who “forgot” to establish a probationary period, to establish it by an additional agreement to the employment contract already in the process of labor relations.

For your information.During the probation period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations (part 3 of article 70 of the Labor Code of the Russian Federation). A literal interpretation allows us to draw an unambiguous conclusion: the amount of wages cannot be reduced for the probationary period. In fact, violation of this rule is allowed by most employers.

Making a test condition

The execution of the test condition itself does not present any particular difficulties. The text of the employee's employment contract should include the following provision: "... The employee is set a probationary period of three months."

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

For your information.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 a particular situation. That is, an employee can be dismissed for absenteeism (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation), and for staff reduction (paragraph 2, part 1, article 81 of the Labor Code of the Russian Federation), and for other reasons .

The employee, if there is a test clause in the employment contract, will be able to warn the employer of his dismissal within a shortened period. So, if during the probation 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 at his own request, notifying the employer in writing three days in advance (and not two weeks, as this is required by Article 80 of the Labor Code of the Russian Federation upon dismissal of one's own free will).

Note that the reason in the letter of resignation indicates the general - "of one's own free will." The fact that the work did not meet the expectations of the employee can be silent. In any case, a notice period of three days, rather than two weeks, will apply.

Registration of termination of the employment contract

With the registration of dismissal on the grounds 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 recognizing the dismissal on the named grounds as illegal, we will go through all the stages of this procedure together.

For convenience, consider the following situation.

A new employee has been hired at the enterprise, and on February 17, 2014, an employment contract was concluded with him. According to the terms of the employment contract, it is from this day that the employee must start work. The employment contract provides for a trial period of three months. According to the immediate supervisor of the new employee, the level of knowledge, skills, and attitude to work do not meet the requirements of the employer. This official reported this to the director of the enterprise at the planning meeting on April 30, 2014 and suggested initiating the dismissal procedure as a result of an unsatisfactory test result. At the same time, the head of the employee 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 consider terms

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

Having set the end date of the probationary period, we determine the last date on which the notice of the unsatisfactory test result should be given to the employee. In accordance with Part 1 of Art. 71 of the Labor Code of the Russian Federation, the notification must be sent 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 with which the Labor Code of the Russian Federation connects the emergence of labor rights and obligations begins from the calendar date on which the beginning of the emergence of these rights and obligations is determined. The period 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 employment relationship. Terms calculated in years, months, weeks expire on the corresponding day of the last year, month or week of the term. The period calculated in calendar weeks or days includes non-working days. If the last day of the term falls on a non-working day, the expiration date of the term shall be the next working day following it.

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

Question. Is it possible to start the procedure for dismissing an employee before the end of the probationary period, if the employer comes to the conclusion that the employee has not passed 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, you can at any time. However, it should be borne in mind that by that time a sufficient amount of documented evidence should have already been collected that the employee did not pass the test.

2. We collect evidence of an unsatisfactory test result

Such grounds can be memos / memos of the head and other services, acts of official investigations of employee misconduct, acts of inspections that record erroneous actions of the employee, and other written evidence.

3. We issue a notification

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

delivery

JSC "Speed ​​Delivery"

N. A. Kozlov

Moscow, st. Pirogova, d. 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 Fast Delivery OJSC on February 17, 2014 (N TD-14) was recognized by the employer as unsatisfactory for the reasons set out below.

In accordance with the act of the internal investigation dated 03/25/2014, based on the results of the audit during your work from 02/17/2014 to 03/24/2014, a violation of paragraphs 4.1 and 4.1.2 of the Rules for the delivery of items to addressees approved by order No. 417 dated 10/07/2011 was revealed, and clause 3.1 of the job description of the leading specialist of the delivery department, approved on 10/30/2012, namely: the shipment of 02/25/2014 N 41 was delivered to the addressee with a delay of 14 hours, the shipment of 02/26/2014 N 54 was delivered 2 hours late, the departure dated 03/06/2014 N 62 was delivered with a delay of 4 hours.

In connection with the unsatisfactory result of the test, the management of JSC "Speed ​​Delivery" decided to terminate the employment contract with you dated February 17, 2014 N TD-14 under part 1 of Art. 71 of the Labor Code of the Russian Federation (with an unsatisfactory test result) 05/16/2014.

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

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

If the employee refused to sign on receipt of the notification (or refused to read it), it is necessary to draw up an act about this (Example 3).

Open Joint Stock Company "Speed ​​Delivery"

Act

Moscow

On the refusal to put down a signature in the familiarization

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 as follows:

Today, May 12, 2014, N.A. Kozlov, the leading specialist of Express Delivery OJSC, at 12:30 in the office of the director of Express Delivery OJSC, N.A. 2014 N 45 on the unsatisfactory test result. After familiarization, Kozlov N.A., in the presence of all the undersigned officials, refused to sign the receipt of the said notification and refused to sign the 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, having received such a notice, employees write a letter of resignation of their own free will. The law does not prohibit, if there are several grounds for dismissal, to choose one of them, including dismissing an employee on his own initiative.

Question. The worker was served with 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 with a deadline for dismissal in two weeks, as provided Art. 80 TK RF. However, the date of dismissal will already go beyond the probationary period. How to protect yourself from the risk of an employee withdrawing his letter of resignation immediately after the end of the probationary period?

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

- by 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 notification, despite the presence of the employee's application for dismissal.

5. We issue a dismissal

The procedure for dismissal in this case is standard.

Step 1. On the day of dismissal, it is necessary to issue a dismissal order (the project can also be prepared in advance).

For your information.You have the right to use the unified form N T-8, approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 N 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment." Despite the fact that since 01/01/2013 the unified forms have ceased to be mandatory for use, they provide the greatest information content and remain the most convenient for many employers due to their versatility and familiarity. However, do not forget that they must be approved by order for the company.

Step 2. Then the employee must be familiarized with the order under a personal signature or make an appropriate entry on the order (instruction) in the case when the order to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to read it under the signature (part 1 of article 84.1 TC RF).

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 copies of documents to the employee, including a 2-NDFL certificate, if there is an application for this, 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 compulsory social insurance in case of temporary disability and in connection with motherhood"). The form of the certificate was approved by order of the Ministry of Labor of Russia dated April 30, 2013 N 182n.

Step 5. Make a record of dismissal in the work book. According to Art. 84.1 of the Labor Code of the Russian Federation, an entry in the work book on the basis and reason for the 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. Issue the remaining personnel documents for accounting of labor relations:

- employee's personal card (most employers continue to use the unified form N T-2). It is necessary to obtain the signatures of the employee on the card in some places provided for 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 signature of the employee is not required on it (Methodological recommendations for maintaining military records in organizations, approved by the General Staff of the Armed Forces of the Russian Federation of 11.04.2008).

Step 7. Issue a work book to an employee. Issuance is to be made under the personal signature of the employee with the date of receipt in the register of the movement of work books and inserts in them (Example 5). The form was approved by the Decree of the Ministry of Labor of Russia dated 10.10.2003 N 69 "On approval of the Instructions for filling out work books."

Appendix No. 3

TO Decree Ministry of Labor of Russia dated 10.10.2003 N 69

Book of accounting for the movement of work books and inserts in them

In the event that 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 a notification to the employee about the need to appear for it or agree to send it by mail. From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book (Article 84.1 of the Labor Code of the Russian Federation).

Errors when terminating an employment contract

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

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

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

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

4) incorrect qualification of action/inaction as the reason for the unsatisfactory test result of the employee. For example, if you hired a driver without including washing the entrusted car in his duties, 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 named basis after the expiration of the probationary period.

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

Arbitrage practice. An employee dismissed under Part 1 of Art. 71 of the Labor Code of the Russian Federation, was reinstated by the court in her position. Considering the case, the court came to the conclusion that the defendant did not follow the dismissal procedure, did not indicate the specific reasons that served as the basis for recognizing the employee as not having passed the test, which is a gross violation of labor legislation. The right to assess the results of the employee's test belongs to the employer, who, during the probationary period, must find out the business and professional qualities of the employee. Therefore, when an employee is dismissed 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 support the facts set forth in the appendix to the employee's notice of the unsatisfactory test result. From the evidence presented, it does not follow how the level of professionalism of the plaintiff, the quality of her performance of her duties was assessed. In the opinion of the court, the defendant did not provide evidence convincingly testifying to the plaintiff's improper performance of her official duties. Thus, the court came to the correct conclusion that there were no grounds for recognizing the results of the employee’s test as unsatisfactory (determination of the St. Petersburg City Court of October 14, 2013 N 33-15722).

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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 to comply with the dismissal procedure. Moreover, it will be legal only if there is evidence of unsatisfactory results of the employee's test.

Even if the employer tries to comply with all the requirements of the law, as practice shows, he is not immune from the reinstatement of the employee. When 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 the right (for example, silence about the presence of a disease and an open sick leave).

There are situations when the employer abuses the rights of potential employees when hiring. To avoid such problems, every worker must be aware of their rights. You should be aware that all aspects of labor relations between an employee and an employer are regulated by labor laws. The proposed article will help you understand the peculiarities of accepting new specialists, as well as learn more about your rights.

Probationary period for employment under the Labor Code

The legal basis for the probationary period is contained in the Labor Code of the Russian Federation. The relevant regulation deals in detail with the basic requirements of the probationary period for each worker. The conditions contained in the law are as follows:

• It is mandatory to draw up an agreement between the parties indicating the rights and obligations of each of them. In the absence of such a document, the trainee is considered employed;
• The period of probation can only be set at the start of employment;
• Extension of the internship is prohibited;
• The duration of the test is specified in the employment contract. It must comply with the Labor Code of the Russian Federation. If necessary, the time can be reduced;
• When making a contract from 2-6 months, the verification should not be more than 2 weeks;
• Remuneration is obligatory;
• The duration of this period is included in the length of service;
• The manager can refuse employment only during the test;
• The law establishes a list of persons not subject to verification.

Maximum probationary period under the Labor Code

The principles of hiring new employees for a vacant position are indicated in the Labor Code of the Russian Federation. According to the provisions of the law, the following periods of probation exist:

• For persons who have concluded a fixed-term employment contract for no more than 2 weeks;
• One month for workers;
• The maximum duration for all employees is 3 months;
• The internship of managers and other representatives can last up to 6 months;
• The law also provides for the possibility of establishing an inspection of up to 1 year for civil servants.

In addition, it should be noted that the time the employee is absent from the workplace is not counted.

Extension of the probationary period under the Labor Code

Extending the probationary period is contrary to the provisions of the Labor Code, as well as other legislative acts. The contract concluded between the employer and the applicant for the position must include a maximum verification time. Failure to comply with the terms of the agreement may result in consequences. The legal basis for extending the test may be the absence of a worker from work for some time for good reasons.
To issue an extension of the probationary period, the employer must issue an order. The content of the order must include:

• Name of the organization and personal data of the head;
• Document name and number;
• The reasons for the extension of the term are indicated;
• The number of days by which the check is extended;
• The data of the trainee are noted, and evidence of his absence is presented.

Dismissal on probation

If an employee who has completed an internship has not shown the proper result in the verification process, the employer has the right to dismiss him. This event must be carried out by following some rules:

• A written notice is required stating the reasons for the decision;
• The letter should be sent 3 days before the dismissal;
• After three days from the date of notification, an order for dismissal must be drawn up. It must indicate the reasons for the decision, and supplement the document with supporting evidence. If evidence is not found, the employee cannot be fired;
• Claims of clients, colleagues, violation of discipline can serve as evidence;
• This process can be carried out only during the probationary period.

According to the Labor Code, an employee has the opportunity to make a dismissal of his own free will. To do this, you need to notify the management 3 days in advance and write a letter of resignation. The three-day period is considered mandatory during the test.

Can a pregnant woman be fired on probation?

The Labor Code provides pregnant employees with a number of privileges. To use them, you must meet the following criteria:

• The pregnant worker and the employer must be aware of the situation;
• A medical certificate must be provided to confirm the fact of pregnancy.

If the above criteria are met, then the pregnant employee cannot be fired at the request of the management. In other cases, the woman has the opportunity to receive a probationary period and be fired. Resignation can only be carried out at one's own will or by joint agreement.

How much is the salary for probationary work according to the Labor Code?

When hiring a new worker for a vacant position, the employer must follow all the provisions of labor legislation. Particular attention should be paid to remuneration during the probationary period.

• When passing tests, it should be taken into account that the trainee has rights and obligations similar to other workers;
• Probationary pay is mandatory. It should be commensurate with the qualifications and complexity of the employee's work. The salary cannot be lower than the minimum payments and must comply with the Labor Code of the Russian Federation;
• Salary must be initially agreed by the parties.

Interns who want to find a new job often face deception from management. They are granted a limited list of rights, low wages, which is contrary to the law. To avoid such problems, it is recommended to familiarize yourself with the provisions of the Labor Code of the Russian Federation.

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