Experts recommend, even if the person at first glance is ideally suited for any position, to conclude an employment contract with him for a trial period. In this case, it will be possible to evaluate his professional qualities and terminate the contract if he does not suit the employer. Next, we consider in more detail what constitutes a probationary period for an employee.
General information
The labor code with comments on the articles clearly regulates the procedure for registering a person for a particular position. Recruiting is often a fairly lengthy process. Usually, hiring is carried out based on the results of the interview. Often when hired, he is offered professional tests.
Nevertheless, even the most careful selection of personnel does not exclude the risk to the employer. A new person may result in insufficiently qualified or disciplined. To assess how it meets the requirements of the enterprise, it is advisable to establish a trial period for the employee. To implement this, one should not just stipulate, but legally correctly draw up an agreement. The Labor Code, with commentary on the articles, establishes the legal basis for employment with such conditions. However, you need to know some nuances in order to prevent mistakes in practice.
Principles by which a trial period is established at work
As mentioned above, this period is necessary to test the professional and some personal qualities of a person. Hiring in this case is subject to a number of conditions. These include, in particular:
- A probationary period is set for hired people who have not previously held any position in the enterprise. For example, this applies to cases when a specialist is transferred to a higher position or to another department.
- The probationary period is set until the moment the person begins to fulfill his duties. This means that before starting an activity, an appropriate agreement must be drawn up at the enterprise. It is a trial period agreement (as a separate application) or these conditions are entered into the general contract. Otherwise, this agreement does not have legal force.
It should be noted that the condition for the application of the probationary period should be present not only directly in the employment contract, but also in the order on the enrollment of a person in the state. In this case, the future employee with his signature must confirm the fact of familiarization and agreement with these facts. It is not necessary to put a note on the appointment of a probationary period in the work book.
Legal registration
As stated in the TC, the trial period applies only in accordance with the agreement of the parties. Registration conditions must be documented. The main document is an employment contract with a probationary period. If the conditions are fixed only in the order, then this is considered a violation of the law. In this case, the judicial authority shall invalidate the conditions for the designation of the test.
In addition to the main contract and the order, the procedure for registering an employee can be reflected directly in his application for a request for appointment to a particular position.It should be said that the duties of the employer include not only legally competent execution of the contract and other documents, but also familiarization of the future employee with labor duties, internal rules of the company, job description. The employee certifies this fact with his signature. This is of particular importance if a person has not passed the probationary period. If the employer is compelled to dismiss the employee who has not sustained the established period, the fact of his familiarization with the duties is used to confirm his inconsistency with the assigned position.
Alternative option
Quite often, employers instead of a perpetual contract with a trial period enter into an urgent agreement. In their opinion, such an employee’s design greatly simplifies the situation when a person has not coped with the tasks and should be dismissed. The period of the fixed-term contract will end, and the employee will leave himself. However, the legislation establishes certain conditions for concluding such an agreement. So, according to article 58 of the Labor Code, the execution of a fixed-term contract in order to evade the provision of guarantees and rights provided for employees for whom a perpetual contract is to be used is prohibited. Compliance with these conditions is recommended to pay particular attention to the courts in the proceedings of violations.
Resolution of the Plenum of the Supreme Court (Supreme Court) No. 63 (dated December 28, 2006), p. 13
If during the course of the consideration of a dispute on the legality of drawing up an urgent agreement it is revealed that it was concluded by an employee by force, then the court shall apply the rules of the contract for an indefinite period. If a person appealed to the legal authority or to the appropriate inspection, the contract may be deemed concluded for an indefinite period. In this case, a trial period is not assigned. For the duration of the probationary period, the relevant provisions of the law and other acts, which contain the norms of the established law, collective agreement, contract, local documents, apply to a person.
Salary
A violation of the law is the establishment of a lower remuneration for an employee’s activities for a period of probation in an employment contract. The norms do not stipulate that the salary of a specialist in this case is different. In the event of a conflict, the employee has the right to receive underpayment in court. On the part of the employer, this moment can be solved in various ways. In particular, when registering an employment contract, the amount of payment for the duration of the trial period is indicated as constant. At the end of the period, an additional agreement is signed with the specialist, in which the increase in payment is established. Also, a bonus provision may be adopted at the enterprise. The size of these additional payments may be established in accordance with the experience.
The order of dismissal
During the trial period, the employee is also covered by guarantees and norms related to the grounds for the refusal of the employer on his initiative from the services of the employee. They are provided for in Article 81. Additional grounds not established by law may not be included in an employment contract. These include, for example, the reasons for "expediency" or "at the discretion of management." These formulations are often present in contracts. However, they do not comply with the law.
Vacation
The probationary period is included in the length of service of the employee. He gives the right to basic annual paid leave. In the event of dismissal during the probationary period or after its completion, despite the fact that a person has not performed his duties at the enterprise for six months, he is entitled to compensation for the unused vacation period. She is appointed in proportion to the period of his stay at the enterprise as an employee.
Special cases
When you draw up an employment contract, you need to know that the law excludes the possibility of applying a trial period to a number of categories of persons. These include:
- Elected by competition to fill a particular position, held in the manner prescribed by law or other regulations.
- Pregnant or dependent women under one and a half years old women.
- Persons under 18 years old.
- Invited to work in the order of transfer from another employer in agreement between the management of enterprises.
- Persons applying for work under a contract for a period of less than two months and others.
Period duration
A trial period of 3 months is established in general cases. For managers, chief accountants and their deputies, directors of representative offices, branches and other structural separate divisions - six months, unless otherwise provided by the Federal Law. When making an employment contract for 3-6 months, the probationary period is no more than two weeks.
This period does not include days when the employee was virtually absent from the enterprise. It can be temporary disability due to illness, for example. In practice, employers often resort to extending the probationary period specified in the contract. These actions are against the law. If, at the end of the term, the employer has not decided to quit, the employee is considered to have passed the test. In some cases, a longer period is provided. It is regulated by Art. 27 Federal Law No. 79 and applies to civil servants.
End of probationary period
Often after the period, the employee continues to work in the enterprise. In this case, it is considered to have passed the test, and further termination of the employment contract is carried out on a common basis. If the employer believes that the person does not correspond to the position, then additional paperwork is not required. In other words, the employee continues to work on a common basis.
Section 71
In the event of an unsatisfactory test result, the lessee has the right to terminate the contract before its expiration. At the same time, he should warn the employee about this three days before the termination of the contract. The warning should contain reasons why the employer acknowledges that the person is not in the position and has not passed the test. An employee may appeal this decision in court. In case of unsatisfactory result, the termination of the contract is carried out without taking into account the opinion of the trade union body and without paying severance pay. If the employer decides to dismiss a new employee, then in this case it is necessary to follow a certain procedure and draw up the relevant documents. In particular, a notice of unsatisfactory result is compiled. It should be in duplicate - for the employee and the leader. The document is transferred to the employee under signature.
Tenant action in case of refusal to accept notification
An employee may refuse to accept paper. In this case, the tenant needs to take certain actions. In particular, a corresponding act is drawn up in the presence of several employees of the enterprise. Employee witnesses confirm with their signatures the fact of delivery of the document, the refusal to accept it. A copy of the notice may be sent by mail to the employee’s home address. Sending is carried out by registered mail. It should also be with a receipt of receipt.
In this case, it is very important to comply with the deadline established in Article 71: a letter of notification regarding dismissal must be received at the post office no later than three days before the completion of the test assigned to the employee. The date of departure is determined by the stamp on the receipt and the return receipt returned to the employer.The document on termination of the contract must contain all the necessary features: date and outgoing number, signature of the authorized person, impression of the seal, which is intended for registration of such papers.
Legally correct wording of the reasons for dismissal
It should be based on documents that confirm the validity of the decision made by the employer. As the judicial practice shows, in the process of considering disputes about dismissal due to an unsatisfactory result during a test, the employer is required to confirm the fact of inconsistency of the employee position. For this, moments should be recorded when a person could not cope with the task or committed other violations (for example, job description, inner order rules and other).
These circumstances must be documented (recorded), if possible indicating the reasons. Along with this, a written explanation of his actions should be required from the employee. Experts believe that with dismissal under article 71 it is necessary to provide evidence of professional non-compliance of the employee of the post. In case of violation of internal discipline by him (he skipped or in some other way showed a negligent attitude to activities at the enterprise), he should be dismissed according to the relevant clause of Article 81. The following documents can serve as documents with which the employer confirms the validity of the dismissal:
- Discipline Act.
- A document confirming the discrepancy of the quality of work with the requirements accepted at the enterprise and production standards and time.
- Explanatory notes of the employee about the reasons for non-fulfillment of tasks.
- Customer complaints in writing.
Business Assessment
It has a direct dependence on the specifics and scope of the enterprise. Based on this, conclusions about the test results can be based on various data. For example, in the field of production, in which the subject (product) acts as the result of the activity, one can clearly determine the level of quality. If the company is engaged in the provision of services, then the assessment of the business qualities of the employee is carried out in accordance with the number of customer complaints.
Certain difficulties are present in the field of intellectual activity. In this case, to assess the results, the quality of the execution of instructions is fixed, compliance with the established deadlines, execution of the total volume of tasks, compliance with professional qualification standards. The design and submission of these documents is the responsibility of the immediate superior of the new employee. The procedure for dismissing an employee, therefore, requires a certain formalism from the employer. However, the employee may, in any case, legally appeal the decision.
Employee's right to terminate a contract
An employee can use it if during the test he realizes that the proposed activity does not suit him. He must warn management three days in advance of his decision. The notice must be in writing. This rule is of particular importance to the employee. This is due to the fact that potential employers would like to know the reasons why the applicant quit so quickly from the previous company.
Finally
The legislation rather accurately defines the conditions under which the application of the trial period is allowed. Due to the fact that often a new employee is considered within the framework of these relations as a party that does not have social protection, certain guarantees are established for him by the rules of law. In this procedure employee layoffs due to the unsatisfactory result of the test period is quite formalized. The legislation defines the employee’s right to appeal the decision of the enterprise’s management in a judicial proceeding.
In such cases, the executive body will carry out a thorough check of the legality of establishing a probationary period, legal literacy of the necessary documentation. Equally important will be the observance by the enterprise management of all legal aspects within the framework of these relations. Based on this, both the employer and the applicant themselves have the right for themselves to determine the appropriateness of the application and the conditions for passing the probationary period at the enterprise. As practice shows, cases of conflict are noted less often where selection is carried out according to the results of several stages of the interview.
