If the employee has not passed the probationary period. Sample notice of failure to pass the probationary period

Currently, employment in most companies provides for the passage of a probationary period. During the probationary period, the company's management assesses the professional and personal qualities of the employee, and at the end of it makes a decision on the employee's further labor activity in the company. In the event that an employee fails the test, he may be dismissed in a simplified manner on the basis of a notice. In the article we will talk about the notification of failure to pass the probationary period and the mechanism for dismissing an employee.

The concept of probation

Modern practice shows that most employers prefer to hire permanently only those employees who have successfully passed the probationary period. The period during which the management evaluates the performance of an employee is set individually and depends on the specifics of the work of a particular unit and the characteristics of the company as a whole.

Criteria for passing the probationary period

The current legislation does not provide clear criteria according to which an employee is considered to have passed/failed the probationary period. Each company develops requirements individually and approves them in internal regulatory documents. To maintain transparency and to avoid claims from the employee, the company's management, as a rule, determines individual criteria and requirements in the context of the activities of a particular unit.

Depending on the specifics, the criteria may be:

processing a certain number of orders within a set period (for example, 10 orders per day);
responses to phone calls of counterparties (for example, at least 20 per day);
absence of claims from clients (for example, up to 5 claims within a month).

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Dismissal of an unsuccessful test: legislative framework

If the employee has no claims during the probationary period, he continues his work in his position, maintaining his official salary, while it is possible to increase the salary on an individual basis. However, what should the manager do if during the test the employee demonstrated business or personal qualities that are incompatible with the position held?

The labor law comes to the aid of the employer. According to Part 1 of Art. 71 of the Labor Code of the Russian Federation, the employer is given the right to dismiss an employee under a simplified procedure if the latter has not passed the probationary period. As part of the procedure, the management of the company may dismiss the employee after giving him the appropriate notice. The text of the document indicates the fact that the probationary period has not passed (with a description of the reasons), as well as the upcoming dismissal.

The notification is submitted to the employee no later than 3 days before the planned dismissal.

The right of an employee to be fired during a probationary period

How to write a notice of failure to pass the probationary period

Current regulations do not regulate the form according to which a notice of failure to pass the probationary period must be issued. The document is drawn up in free form, but with the indication of the required details:

full name of the organization;
Full name and position of the head on whose behalf the notification is submitted. They can be both the director of the company and the line manager responsible for working with personnel and personnel records (for example, head of the HR department, head of the HR department, etc.);
Name and position of the employee to whom the notification is sent;
confirmation of the fact of failure to pass the probationary period;
a description of the reasons for the failure of the test. In this paragraph, it is necessary to briefly and clearly indicate the criteria that were put forward for the employee and which he did not fulfill;
a warning about the upcoming dismissal indicating a specific date (not earlier than 3 days from the date of preparation of the document), as well as references to the norms of labor legislation (TC part 1, article 71);
the date of the notice;
signature of the compiler (head or person replacing him on the basis of a power of attorney).

At the end of the notification, the “I have read and agree” column should be provided for the signature of the employee who did not pass the test.

Submit a notice to an employee

In order to dismiss an employee under a simplified scheme based on the results of the probationary period, the employer must draw up a notice and submit it to the employee, while observing the norms of labor legislation. How to do this - see the instructions below.

Step 1. Drafting a notice

Prepare a notice in accordance with the given sample, indicating the necessary details. When drawing up a document, special attention should be paid to justifying the reasons for dismissal. In the text, it is better to rely on specific facts (violation of labor discipline by an employee, late submission of reports, etc.) and regulatory documents (TC norms, internal procedures of the company). The more clearly and convincingly the reasons are described as a result of which the employee is recognized as not having passed the probationary period and must be fired, the lower the risk of disputes and claims from the employee.

Step 2: Send notification to employee

In order to dismiss an employee in accordance with Article 71, the employee must receive a notification no later than 3 working days before the expiration of the probationary period and the day of direct dismissal. If the employee receives notifications later, then the norms of Part 1 of Thu. 71 of the Labor Code does not apply to him, and he cannot be dismissed under a simplified procedure.

Example 1 The employee was hired on 08/01/17, the probationary period is set until 11/01/17 (3 months). If the employee is recognized as not having passed the probationary period, then he can be dismissed on the day it ends - 10/31/17. Thus, the employer must send a notice before 10/25/17 (3 days before the dismissal, excluding weekends).

The form of document transfer can be either standard (notification on paper) or electronic (message to the corporate e-mail address), depending on the procedure adopted by the company.

Step 3. Obtaining the consent of the employee to dismiss

A prerequisite for the dismissal of an employee under Art. 71 - the presence of his written consent. To optimize the workflow, it is advisable to draw up a notice with the “I have read and agree” column, in which the employee can put his signature. Consent to dismissal based on the results of the test can be provided by the employee in the form of a separate document (application, receipt, etc.). However, this format is almost never used in current practice.

Step 4. Dismissing an employee and calculating payments

After the employee has been given a notice that the employee has not completed the probationary period and his consent has been received, the employer can proceed directly to the dismissal procedure. In this case, the company should act in accordance with the general procedure, namely:

the personnel department to prepare a dismissal order, with reference to Art. 71 of the Labor Code (date of dismissal - the last day of the probationary period);
accounting department to calculate and pay wages and other remuneration no later than the day of dismissal;
on the day of dismissal, the personnel department fill out a work book (indicate the reason for dismissal - part 1 of article 71 of the Labor Code) and issue it to the employee.

It should be noted that the employee retains the right to challenge the results of the probationary period and dismissal in court.

A probationary period may be provided for when hiring adults, if the total period for which the contract is concluded exceeds 2 months. The clause on the obligatory passage of a probationary period by an employee is indicated in the employment contract, otherwise the dismissal of an employee can be considered illegal.

Also, illegal dismissal during a probationary check is considered:

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

Based on the results of work during the probationary period, the employer may decide on the need to dismiss the employee if he does not cope with his job duties. The employment contract signed by the parties is canceled, and the dismissed person is no longer an employee of the organization.

In this case, the employee does not need to work for another two weeks. Thus, the procedure for dismissal in case of failure to pass the probationary period is significantly simplified in comparison with the suspension of a permanent employee from work.

The procedure for dismissing an employee on probation

During the period indicated in the employment contract as a probationary period, the employer may remove the employee from duties due to unsatisfactory test results.

According to part 1 of article 71 of the Labor Code of the Russian Federation, an employee who did not cope with his duties during the probationary period must be informed of the upcoming dismissal at least 3 days in advance. Such employee must be given a formal notice.

When an employee is notified of an impending dismissal, non-working days are included in the notice period (part 3 of article 14, part 1 of article 71 of the Labor Code of the Russian Federation).

It is necessary to prepare a notice for dismissal due to failure to pass the probationary period in accordance with the established form. The document must indicate the full name and position of the employee, the name of the organization, the reason for the subsequent dismissal, the date the document was drawn up and a request to confirm receipt of the notification with a personal signature.

If the employee does not agree to personally certify that the notification has been received, the authorized person may draw up a refusal certificate in the presence of two witnesses, which will have the same legal force.

The result of serving an official notice to an employee should be the execution of an order for dismissal. In the document, as the reason for dismissal, Part 1 of Art. 71 of the Labor Code of the Russian Federation. After issuing an order with a dismissed employee, you need to make a calculation in accordance with the terms of the employment contract.

It is illegal to formalize a job without payroll during a probationary period. The employee has the right to receive payment for the days actually worked, as well as unused vacation days in accordance with the conditions specified in the contract.

After making the calculation, the dismissed person is given all the documents that he provided to the employer during employment, and the dismissal is also recorded in the work book.

Good reasons for leaving

Curious information

According to surveys, in 67% of cases, the employer evaluates how successfully the probationary period was completed in terms of the quality of the tasks assigned to the new employee, in 61% of cases, according to his professional compliance with the position held. Some employers pay attention to the mistakes made, as well as to the established KPIs.

The reasons for dismissal of an employee should always be related to non-performance of work duties and obstruction of the work process. It is impossible to dismiss a person for his personal qualities, beliefs and passions, if this does not prevent him from performing work duties. The notice of impending dismissal must always indicate a good and truthful reason, otherwise the employee will be able to challenge the decision in court.

Dismissal as not having passed the probationary period can be carried out for one of the following reasons:

Disciplinary violations - coming to work in a state of intoxication or under the influence of drugs, non-compliance with the work schedule, not showing up to work on a working day.
Poor performance of duties - a violation of the production process, a decrease in performance indicators, inappropriate treatment of the organization's customers.
Non-compliance with internal regulations - the employee does not wear a uniform, if it is provided, does not adhere to the dress code and safety regulations.
Untimely execution of orders, if this prevents the normalization of the work process.

Watch a video that will tell you in detail about the dismissal of an employee who has not passed the probationary period

If the reason for dismissal is disciplinary inconsistency with the position or failure to fulfill duties, it is desirable to have documentary evidence of violations. Documents such as memos and explanatory notes, complaints about an employee from clients and colleagues, confirmation of the release of low-quality products, as well as oral and written testimonies will easily convince the court of the legitimacy of the employer's actions.

Possible reasons for dismissal due to an unsatisfactory test result are best discussed with the employee in advance even before signing the employment contract. A prior agreement documented by the terms of the contract will increase the employer's chances of winning in litigation if they arise.

All questions of interest can be asked in the comments to the article.

In the article, we remind employers of the procedure for establishing a probationary period. Using examples from judicial practice, let's pay attention to the mistakes that employers make when dismissing an employee who has not passed the test.

Who is not on probation?

Not all potential employees can be placed on probation. If the employer includes a test condition in an employment contract with a person who is prohibited from establishing a test, this condition will not be valid (part 2 of article 9 of the Labor Code of the Russian Federation).

The list of persons is determined by Part 4 of Art. 70, art. 207 of the Labor Code of the Russian Federation and other federal laws:

pregnant women and women with children under the age of one and a half years;
under the age of 18;
who have received secondary vocational education or higher education in educational programs that have state accreditation and are employed for the first time in the acquired specialty within one year from the date of receiving professional education of the appropriate level;
concluding an employment contract for a period of up to two months;
invited to work in the order of transfer from another employer as agreed between employers;
successfully completed apprenticeship - when concluding an employment contract with the employer, under the contract with which they were trained (Article 207 of the Labor Code of the Russian Federation), etc.

If the employer establishes a probationary period for any of the listed persons, all the more, dismisses him as having not passed the test, he may be held administratively liable. The employee who applied to the court will be reinstated.

If, before the end of the probationary period, the employer finds out that the employee belongs to the category of persons for whom the probation is impossible, it is necessary to amend the employment contract. In this case, it is necessary to conclude an additional agreement to it, by which the test condition is canceled. Based on the agreement, an appropriate order should be issued.

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The procedure for terminating an employment contract with an employee who has not passed the test

The procedure for establishing a test for employment is established in Art. 70 of the Labor Code of the Russian Federation.

Step 1. The condition of a probationary period for an employee must be included directly in his employment contract. The absence of such a condition in the employment contract means that the employee is hired without a test.

The period of probation for employees may not exceed three months. For heads of organizations and their deputies, chief accountants and their deputies, heads of branches - six months. When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.

The probationary period does not include any periods of the employee's actual absence from work, including periods when the employee is on short-term leave without pay or on leave in connection with training, the performance of state or public duties, the period of absence of the employee from work without good reason (period absenteeism), a period of downtime, if the employee was absent from work during the downtime (Determination of the Supreme Court of the Russian Federation dated 04.08.2006 No. 5-В06-76). But it is impossible to dismiss an employee due to an unsatisfactory test result while he is on vacation or on sick leave.

Step 2 Based on the employment contract, which contains a condition on the establishment of a probationary period, the employer issues an order stating that the employee has been accepted with a probationary period, and indicates the period of such a probation.

We draw the attention of employers, if the condition of the test and its period are established only in the order, while not established by the employment contract, in this case, the employee will be considered hired without a test.

If an employee fails to perform his job duties during the probationary period, the employer has the right to dismiss him. The procedure for dismissal of an employee who has shown an unsatisfactory result is established by 71 of the Labor Code of the Russian Federation.

Step 3 The employer must confirm that the employee is not coping with work, because the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer (paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). In order not to become a defendant in litigation, it is advisable to create a work plan for the employee for a trial period, keep a log for monitoring the passage of the test, and request reports from the employee on completed tasks.

Step 4 Your decision to dismiss an employee must be supported by a number of documents. It can be:

various kinds of acts confirming the non-performance or poor-quality performance of the work assigned to the employee, stipulated by the employment contract or job description;
memorandum (official) notes or reports of the immediate supervisor of the employee or the person responsible for evaluating the test results;
witness's testimonies;
"peculiar" attestation (test) sheet and minutes of the meeting of the "peculiar" attestation (test) commission;
orders to apply a disciplinary sanction to an employee (which is not challenged or challenged);
written complaints (claims) from customers.

By the way, sometimes one memorandum (service) note may be enough to dismiss an employee. There is such a case in jurisprudence. The reason for the dismissal was a memo from the immediate supervisor of the employee. The document stated that the employee does not correspond to the position in terms of the quality of work performed, he is lazy and lacks initiative in his work. The memo contained a proposal to terminate the employment contract with the employee as having not passed the test when hiring. The dismissal was recognized as lawful (Determination of the Leningrad Regional Court dated 07.12.2011 No. 33-5827 / 2011).

Step 5. It is necessary to warn the employee about the termination of the employment contract in writing: the facts indicating that the employee did not pass the test are recorded in the relevant act. This must be done no later than three days before the dismissal.

There is a case in judicial practice when the corresponding notice was drawn up and handed over to the employee only two days before the termination of the employment contract. The court recognized the dismissal of an employee as legal, even though the employer violated the dismissal procedure provided for in Art. 71 of the Labor Code of the Russian Federation (Cassation ruling of the St. Petersburg City Court dated August 29, 2011 No. 33-13139 / 2011).

Warning

Dear V.V. Smirnov!

In accordance with Art. 71 of the Labor Code of the Russian Federation, we warn you that the employment contract concluded with you is subject to early termination due to the fact that you are recognized as not having passed the test provided for by the employment contract, due to inconsistency with the position held and repeated violation of labor discipline and internal regulations of the organization .

Thank you for your work. You will be additionally informed about the procedure for settlement with the enterprise by your immediate supervisor.

We wish you all the best.

General Director Petrov S.S.

(title of the person who signed the document)

personal signature I.O. Surname

Date 18.07.2017

INTRODUCED

Job title personal signature ____________

(indicated by the employee by hand)

In the written notice of dismissal given to the employee, the employer must indicate the reasons for the dismissal. If the employee does not agree with the position of the employer, then this decision can be appealed in court. An analysis of judicial practice shows that the disputes considered by the courts are connected precisely with the violation by the employer of the procedure for dismissing an employee who has not passed the probationary period.

Step 6 So, the employee received a notification, signed, now after three days the employer issues a dismissal order, with which the employee must also be familiarized against signature. The following entry is made in the work book: "The employment contract was terminated due to an unsatisfactory test result, part one of Article 71 of the Labor Code of the Russian Federation."

If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation and the subsequent termination of the employment contract is allowed only on a general basis.

Step 7 On the day of termination of the employment contract, the employer is obliged to issue a work book to the employee and make settlements with him with the payment of all amounts due to the employee.

Also Art. 71 of the Labor Code of the Russian Federation establishes that if, during the probationary period, a newcomer comes to the conclusion that the job offered to him is not suitable for him, he has the right to terminate the employment contract at his own request, notifying the employer about this in writing in the same three days. That is, not only the employer can dismiss an employee on a trial period, but the employee himself can decide that the chosen company does not meet his expectations: career or salary - it doesn’t matter.

If the trial period was not enough to evaluate the ability of the employee ...

Then, by agreement with the employee, the probationary period can be extended by another month. True, Rostrud officials in Letter No. 520-6-1 dated March 2, 2011 argue that the possibility of extending the probationary period by amending the employment contract is not provided for by the labor legislation of the Russian Federation. Their opinion on this issue is the only one, since there are no other explanations, it is up to the employer to stick to it or ignore it.

Rostrud is not opposed to reducing the probationary period if the employee quickly showed himself in the best possible way. Letter No. 1329-6-1 dated May 17, 2011 concluded that, by mutual agreement, the parties have the right to conclude an additional agreement to the employment contract to reduce the probationary period. These changes will not be contrary to labor laws.

Dismissal of a part-time worker

The employer must notify the employee in writing of his intention to terminate the employment contract with the part-time worker on this basis at least two weeks before the expected date of dismissal.

The employer is not obliged to offer another job to a part-time worker. This is his right if the enterprise has other work that the employee can perform on a combination basis. If there is no such job or the employee refused the proposed option, then he is subject to dismissal and in the future continues his labor activity only at the main place of work. The refusal of the employee must be recorded in writing in the form, on its basis, the employer issues an order (instruction) to dismiss the employee with the execution of the documents listed above.

If the employer can offer the part-time job, which he does part-time, as the main one, then with the consent of the employee, it is necessary to conclude a new employment contract on new conditions or conclude an agreement on changing the terms of the employment contract.

If this option is not suitable for the employee and he refused the offer of the employer, then the part-time worker is subject to dismissal. Based on the considered written application, the employer issues an order (instruction) to dismiss the employee with the execution of the above documents.

conclusions

Summing up, once again pay attention to the main points that will help the employer avoid litigation. Everyone should remember them when setting a probationary period and dismissing an employee who has not completed the test.

Not all employees can be placed on probation. Dismissal on the basis of the results of a probationary period of a temporarily disabled employee, a pregnant woman or a woman with a child under the age of three years is unlawful;
The test is considered established if the relevant condition is included in the employment contract. The absence of a probationary period clause in the employment contract makes it unlawful to subsequently apply the probationary period clause, even if it is enshrined in the collective agreement and other local acts (employment order, job description, etc.);
Test results must be documented;
To dismiss an employee based on the results of the probationary period, the employer must indicate in writing the reasons why he was recognized as not having passed the probation, as well as document this fact;
The employee must receive notice no later than three days before the dismissal.

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Almost every organization has a trial period. This period of time is needed in order to look at the employee in action, how he copes with his duties, as well as the skills and knowledge stated in the questionnaire. But it happens that an employee during the test is clearly not suitable for the company and he must be fired. Then he must be served with a notice of failure to pass the probationary period. A sample of this document should be in every organization.

What are the nuances of this procedure and how to do it correctly within the framework of the law?

Foundations

During the test, the employment contract can be terminated both at the request of the employee and at the request of the employer.

If an employee, for any reason, no longer wants to work in this organization, he is obliged, even during the probationary period, to notify his superiors of the termination of the employment agreement.

Dismissal on probation at the initiative of the employer may occur when he is dissatisfied with the work of the employee or the unsatisfactory results of the test after training. In this case, the employee must declare that the test has not passed and terminate the agreement.

But you can’t just take and fire an employee. You need to support your decision with solid evidence:

poor quality performance of tasks;
failure to fulfill assigned duties;
inability to perform the assigned work to the extent necessary;
mismatch of qualifications;
systematic violations, ignoring the rules and regulations established in the organization;
violation of labor law.

The reasons why there is a break in labor relations when the probationary period is not passed should not be generalized, but quite specific.

Employer obligation

The direct obligation of the employer is not only compliance with the dismissal process from beginning to end, but also documentary evidence of termination of the contract due to failure to pass the probationary period.

To do this, during the test, it is necessary to provide the employee with those duties that are directly related to his position. Writing assignments may be troublesome for the company, but is more legally acceptable. The employee must provide reports on the work done. Based on these documents, the employer can prove that the employee performed his work unskilled, and therefore did not pass the test.

In order for the dismissal to be justified and lawful, it is necessary to properly recruit an employee. The fact of the probationary period must be specified in the employment agreement. You also need to prescribe what payments and in what quantities are due to the employee during the test. Most importantly, the document should be signed by the employee. This means that he is satisfied with all the working conditions and the passage of the probationary period.

The order specifies the duration of the test. It is also necessary that the employee familiarize himself with the document on passing the test and put his signature.

Any violation of labor laws, as well as inattentive attitude to paperwork on the part of the management, may lead to the employee's disagreement with the reason for dismissal and appealing this fact in court. And the court will be on the side of the former employee, and this threatens the organization with fines and various compensations.

Do not forget about the notice of failure to pass the probationary period, a sample of which should be in every organization.

How to fire

The management has the right to dismiss the employee at any time during the test, if this is provided for by labor legislation and does not violate the rights of the employee. Strict observance of formalities is required.

How to fire an employee for not passing the probationary period? Consider the step-by-step algorithm of this process:

Preparation of documentation that confirms the legal grounds for the decision.
Delivery of a notice confirming dismissal due to failure to pass the test. This document must contain the information that caused the dismissal: untimely execution of assigned tasks, non-compliance with the rules of the working regime, disciplinary violations, poor quality work.
Issuing a notice of dismissal. Here the employee is required to put his signature as a sign of agreement with the reasons and the fact of dismissal.

Enrollment in labor

If there is a dismissal during a probationary period at the initiative of the employer, then an entry in the labor form must be made accordingly. According to all the rules of labor legislation, the labor is filled out as follows:

The first column contains the serial number of the record.
The second column contains the date of dismissal, which must coincide with the date of the order.
The third column indicates the reason for the dismissal and the article of the Labor Code of the Russian Federation, to which the employer refers (Example: Dismissed due to unsatisfactory completion of the probationary period, part 1, article 71 of the Labor Code of the Russian Federation). In the same column, the details of the authorized person and the employee himself are indicated.
The fourth column indicates information about the document on the basis of which the dismissal occurred.

Payouts

In order not to reveal a violation of labor laws, a dismissed employee who has not passed the test is also entitled to payments in the calculation. These include:

wages for the worked period of time (it should not be deliberately reduced);
compensation for unused vacation (these payments are made only if the employee has worked for at least 15 days).

All payments due to a citizen must be paid no later than the next day after dismissal.

Deadlines

According to the general rules, upon dismissal at the initiative of an employee, the employer may require working off in 14 days. If the dismissal occurs during the test, then this period is significantly reduced. First, the manager is obliged to notify the employee three days in advance of the upcoming dismissal. Secondly, he must personally deliver a notice of failure to pass the probationary period (a sample document is presented below).

By agreement of the parties, the employee can quit on the same day on which he received the notice.

Controversial nuances

When an employment contract is terminated if the probationary period is not completed, various conflict situations may arise. The possibility of judicial intervention is not ruled out. The reason for the dispute may be:

What you should pay attention to employees who take a position with a probationary period:

the presence of a written document that the employee signs personally;
observance of terms of dismissal;
the presence in the notification of the reasons provided for in Art. 81 of the Labor Code of the Russian Federation.

You should know that the date of dismissal must be within the trial period.

People are often hired without recommendations and verification of the necessary professional skills. Therefore, in order to protect themselves from unscrupulous employees, employers check the suitability of a new subordinate with the help of a trial period. This is a wonderful opportunity for both parties to find out how expectations match reality.

Reasons for test failure

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

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

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

Why is a trial period needed?

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

When to Suspend an Unsuitable Employee

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

If he was absent from work due to illness, leave without pay, leave for study, suspension from work, then the test is extended by the corresponding number of incapacitated days. Idle time at work due to the fault of the employer is also not included in the probationary period. And business trips and business trips (part 1 of article 166 of the Labor Code of the Russian Federation) are counted in the test.

Unlawful dismissal during a probationary check is considered:

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

How to fire someone who hasn't passed probation

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

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

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

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

acts on poor-quality performance of qualifying direct duties;
memorandums, reviews, characteristics, conclusions of a particular head of an employee about his unsuitability;
acts on the production of defective products;
control logs on passing the test check;
personal written reports of the employee on the completed assignments and a detailed description of the reasons for not completing the assignments;
protocols from the meetings of the commission to establish the results of the employee's test;
customer entries in the book of complaints and suggestions, etc.

The sequence of termination of the employment contract

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

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

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

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

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

Undesirable Consequence

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

If the employer is not fully convinced of the sufficiency of evidence that will confirm the negative outcome of the test, it is better to choose a different course of action. For example:

terminate the contract due to repeated failure to perform official duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
dismiss by agreement of the parties (Article 78 of the Labor Code of the Russian Federation).