Dismissal on probation at the initiative of the employee. The procedure for dismissal during a probationary period at the initiative of the employee

The condition on the appointment of a probationary period when hiring is included in the employment contract.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and IS FREE!

The period is given to the employer and employee to confirm the correctness of the choice of the enterprise or employee.

By signing an employment contract with a provision on probationary period, the employee agrees to its passage.

Legislative framework

In the Labor Code of the Russian Federation, the procedure for appointing and passing the test is defined in Articles 70 and 71.

During the period, the employee has all the rights that are obligatory for other employees and working conditions stipulated for the entire duration of the contract.

Probation condition:

• It must be included in the contract within the period established in the Labor Code of the Russian Federation.
• It is not extended later beyond the period initially determined when the employee was hired. The probation period is included in the length of service.

The test may not be established during employment.

The absence of a condition and the admission of an employee to the performance of duties means employment without a test.

Why is it installed?

Reasons for dismissal own will may include:

• Personal circumstances that have changed after employment.
• Working conditions that do not meet the needs.
• Awareness of the lack of qualifications for the performance of duties.
• Lack of opportunities for career growth.
• The emergence of a better offer.

The short period for dismissal provided by the legislation allows you to find a new place of employment in the shortest possible time.

Application preparation

Before quitting during the probationary period, the employee must notify the employer of his intention.

When making an entry in work book a personnel worker makes a reference to Article 77 of the Labor Code of the Russian Federation:

The document must be handed former employee on the last working day, which is also the day of dismissal.

Can an application be withdrawn?

Before the preparation of documents for dismissal and signature by their employee on the last working day, it is possible to withdraw the application.

The employee must submit a new application in writing and record it with the personnel authority or with the employer.

Document example:

Sample letter of resignation letter for dismissal of an employee

After the notification is withdrawn, the person continues to perform duties in the usual manner.

An exception for recall is a situation in which another employee is invited to the vacant position. The invitation must be issued on the basis of a written document.

When hiring in successful organizations and structures to verify compliance with the requirements and conditions of the company, a verification period is often set for him. A situation may arise in which it is necessary to make a dismissal during the probationary period. How is it possible to do this?

Working relations between an enterprise and an employee are regulated by the Labor Code, which does not establish as mandatory requirement the passage of new frames of any period of verification. However, many companies use this option to consider the suitability of a potential specialist. It is also convenient for the worker, who during this time gets acquainted with the working conditions, the team, is determined with the possibility of long-term cooperation.

When establishing the test term, you need to know that certain categories cannot have it:

• Women who are raising children under the age of one and a half years.
• Pregnant.
• Minors.
• Persons who came to the enterprise as winners of the competition.
• Employees with short-term contracts (less than two months).
• Issued by transfer within the organization and from a third-party enterprise.

The presence or absence of time for testing is prescribed in the contract, that is, if there is no clause about it, the reason for dismissal cannot be unsatisfactory passing the test. term.

The maximum test time is three months, for management personnel up to six months. If an employee gets a job under a temporary agreement, for a period of two weeks to six months, the maximum period is two weeks.

The duration of the check is counted as the actual time worked. If the worker falls ill, then it is extended for the duration of the sick leave.

The initiator of the dismissal of an employee may be the employee himself or the company. In any case, the legislation determines the written order of the procedure.

Employee decision

Dismissal during the probationary period at the initiative of the employee must be formalized by an application. Its form is arbitrary, the reason for the termination of the contract is not required, the wording "At will" is sufficient.

The employee is obliged to submit an application no later than three working days before dismissal. After this period, the worker is issued a work book and paid for the hours actually worked. If the head is dismissed, then the term of his possible working off is 1 month.

• Reaching retirement age.
• If an order for admission to educational institution to the day department.
• The need for urgent treatment.
• Urgent move.

In these cases, the reason for the impossibility of working out is written in the application and supporting documents are attached.

If the enterprise at its own expense trained new personnel, then they are required to work for a certain period in this company. In the presence of this condition in the contract, the employer may demand compensation for training.

In the case when the termination of the contract occurred immediately after its conclusion, then an entry in the work book is not made and it is simply canceled.

By decision of the employer

If the employer is not satisfied with the professional or personal qualities of the newcomer, he has the right to dismiss him without waiting for the end of the verification period. Causes may include violations labor discipline, lateness, tactless behavior, absenteeism, etc.

To dismiss an employee who is on probation, the following procedure must be followed:

• Write a notice stating the reasons for terminating the agreement. At the same time, it is necessary to prepare documentary confirmation of the pretexts for dismissal: written complaints from customers, memos from the immediate supervisors of the employee and test logs, the presence of defects in manufactured products, etc.
• Familiarize the employee with the notice three days before the start of its action.
• The employee is obliged to endorse the notification; in case of refusal, an act is drawn up if there are two witnesses about the employee's refusal to sign.
• Based on the notice (or act) signed by the employee, an order is drawn up to terminate the contract.
• The employee is paid wage for the period actually worked, compensation for vacation and other payments in accordance with the employment contract. A maximum of 10 days is allowed for the calculation.
• An entry is made in the work book, and it is transferred to the hands of the dismissed person.

After the probationary period, dismissal is carried out in the standard mode with a working off of 2 weeks or by agreement of the parties.

Who cannot be fired at the initiative of the employer

There are certain restrictions on the dismissal of employees:

• If an employee is on sick leave, he can be fired only after returning to work.
• An employee who becomes pregnant during the test can only be fired at her own request.
• The dismissal of a financially responsible employee is possible only after a full material report.
• The reason for dismissal cannot be the onset of the retirement age of the employee.

Features of registration of termination of labor relations

So that there are no reasons with which the employer or the defendant can go to court after dismissal, it is necessary to strictly follow the procedure for registration provided for by law.

Employers should know:

• Mandatory inclusion in the employment contract of a clause on the presence of a verification period, the conditions for its passage.
• Bringing information to the employee that the answer to the question: can they be fired during a probationary period is positive.
• It is necessary, against receipt, to familiarize the employee with official duties, labor regulations and other norms.
• Dismissal during the “test” is a simplified scheme for terminating an employment contract. The maximum working time is three days, for managers one month.
• An employee cannot be fined. The probationary period is a test of the employee's suitability, so he faces either a reprimand or dismissal.
• In order to have documentary evidence of the suitability or unsuitability of a specialist, when passing the test, he may be provided with a written plan of tasks that must be completed during the test. This document can serve as evidence when an employee is dismissed for professional unsuitability.
• Severance pay is not paid.

Employees need to know:

• Be sure to carefully study the employment contract when applying for a job. Information about the availability, duration and conditions of the test.
• All reasons indicated by the employer in the notice of dismissal must be documented. If the employee disagrees with the arguments, he has the right not to sign the notice. Further resolution of the conflict is possible through labor commissions or the court.
• While on sick leave, the employee has the right to quit of his own free will, without going to work. But the employer does not have the right to fire a sick employee.
• In the event that an employee submitted an application, but changed his mind, he has the right to withdraw it within three days and start working again.

Subject to the legality of the termination procedure labor relations will be quick and painless.

When hiring a new person for a job, the company may establish a probationary period for him, based on the results of which the parties draw conclusions for themselves about the possibility of continuing the employment relationship.

The employer throughout the entire period of the test evaluates the professionalism of the employee, the quality of his duties. During this period, the employee determines whether such work is suitable for him, whether the working conditions and the amount of remuneration correspond to his expectations.

Depending on the result of the test, certain actions are taken by one of the parties. If the result satisfies both parties, then no additional actions it is not necessary to perform, there is no need to notify each other in writing or orally, the employee simply continues to perform his labor functions.

If something does not suit one of the parties, then the employment relationship should be terminated. Moreover, dismissal on probation has a number of nuances and features.

Dismissal on probation at the initiative of the employee

If dissatisfaction with the work comes from the employee, then you should inform the employer in writing about your own desire to end the relationship. The reason for dismissal in such cases is usually the understanding of the employee that this work it doesn’t suit him - he doesn’t like the salary, he doesn’t like the working conditions, the team, the bosses. He may realize that he is unable to do what the leadership requires of him due to the lack of special skills, knowledge or physical abilities.

It is the duty of the worker to notify the manager of the decision to quit of his own free will within at least 3 days. This information should be communicated to management in writing; in practice, a statement is written on behalf of the employee addressed to the representative of the employer's company, as a rule, its head. The application serves as a documentary basis for drawing up an order for the upcoming dismissal.

If the employer intends to fire the employee during the test, then he cannot oblige him to work for 2 weeks. Dismissal should be issued on the date indicated in the application (taking into account the 3-day notice period).

The order is drawn up using, the basis for dismissal is clause 3 of part 1 of article 77 of the Labor Code of the Russian Federation.

Sample letter of resignation

The application form is drawn up in a free form. The text prescribes a clause of a legislative document that allows you to terminate an employment relationship when passing a test without working off - Article 71, taking into account the provisions of Article 80. The Labor Code of the Russian Federation, which stipulates the nuances of dismissal at the request of the worker.

The application shall indicate the date corresponding to the last labor day employee, it is on this date that the employer must formalize the dismissal by entering the necessary information into the personnel documentation and issuing a work book to the dismissed person.

The completed application is certified by the signature of the departing employee, dated to the current day. In the upper part, an indication is given to whom the document is addressed and from whom it is drawn up (name and position of the representative of the organization, its name, full name of the employee).

Dismissal of an employee who has not passed the test

If the employer is not satisfied with the employee and wants to terminate relations with him due to the unsatisfactory result of the probationary period, then one should rely on the first part of 71 Art. TK RF.

It is forbidden to dismiss persons who are on vacation or on sick leave.

It is important to carry out the dismissal procedure correctly, otherwise the employee may redirect the issue of wrongful dismissal to labor inspection. This institution, if there are appropriate grounds, may decide on illegal dismissal employee and oblige the employer to reinstate him in the workplace. To avoid this, you should strictly follow the requirements of labor laws.

First of all, you should make sure that the establishment and implementation of a trial period for this employee done correctly:

• the employee should not be included in the category of persons from 70 Art. Labor Code of the Russian Federation;
• the duration of the test should not exceed the values ​​prescribed in the code - within 3 months in the general case, within 6 months for leadership positions, within 2 weeks for conscripts, if the term of the agreement is from 2 to 6 months;
• the presence of a test must be present in the labor agreement, if this period is not specified in the contractual agreement, it is considered that it is not established for the employee.

Employee notice

The next step is to inform the dismissed employee about the upcoming event caused by the company's dissatisfaction with labor process of this person - this action is mandatory, its absence is gross violation labor legislation.

The worker must be informed of the upcoming event in writing by means of a notice indicating specific reasons proving the unsatisfactory work of the dismissed person. This point is very important - it is possible to dismiss during the test only if there are specific events confirming that the worker is not coping with his duties. If the case of the legality of dismissal reaches the labor inspectorate or other authorities, then a very thorough study of these reasons will follow. Therefore, it is best to immediately prepare for potential issues of supervisory and inspection bodies. If possible, these reasons must be confirmed by documents (memorandums, acts, complaints and claims of customers, explanatory notes).

If there is no documentary evidence, there are high chances that the labor inspectorate or other authority will recognize them as unreasonable due to the lack of evidence.

The term for delivery of the notice is 3 days before the date of termination of the relationship.

The notice must be handed over to the person being dismissed against signature, if he refuses to sign the document, then an act is prepared on this in the presence of witnesses.

Notification example:

Limited Responsibility of "Alfa" to the Manager of the Commerce Department (LLC Alfa) S.S. Semenov NOTIFICATION 01.06.2016 №18 About termination employment contract We hereby inform you that the employment contract concluded with you dated April 2, 2016 No. 23 in accordance with Article 71 of the Labor Code of the Russian Federation will be terminated after 3 (three) days from the date you receive this notice due to an unsatisfactory test result due to non-performance (improper performance) by you their official duties. Appendix: a copy of the conclusion on the test results dated 06/01/2016 No. 10. CEO Petrov A.A. Petrov Acquainted with the notice: Commerce department manager Semenov S.S. Semenov 01.06.2016

Order formation

On the last working day, an order is issued, the T-8 form is used for the formation. the date drawing up a dismissal order should not be later than the end of the test. It is important to notify the worker and document the dismissal during this period, and not after it.

If the order is formed at a later date, then the dismissal under Part 1 of Article 71 is declared illegal.

In the line for indicating the grounds for dismissal, part 1 of article 71 is placed. The basis document is a notification sent to the employee, paragraph labor agreement, which spells out the establishment of a probationary period, and other documentation confirming the failure of the test.

The order form must contain the signature of the head, as well as the dismissed employee. If the latter does not wish to sign the document voluntarily, then it is necessary to form an act on this.

Settlement with an employee

On the last working day, wages and vacation compensation are paid. To calculate these amounts, a standard calculation note is used.

Registration of personnel documentation

The fact of dismissal of a worker due to failure to pass the test is recorded in a personal card and a work book.

Entries are made on the basis of an order, from which the number and date are transferred, as well as the article of the Labor Code of the Russian Federation and the name of the reason for dismissal - part 1 of article 71 (unsatisfactory test result).

Employer liability for wrongful dismissal

If, during the inspection of the company by the supervisory authority or upon the fact of applying to the labor inspectorate, it was established that it was unlawful to dismiss the employee under this article, then the employer will have to reinstate the dismissed employee to his original position, pay for the time of forced absenteeism (from the moment of dismissal to the day of restoration), and also, if necessary, compensate for moral damage suffered by the injured.

In addition to the above, the employer will bear administrative responsibility.

Article 5.27 of the Code of Administrative Offenses of the Russian Federation provides for the following penalties for 2016.

Even a detailed resume and impressive recommendations cannot guarantee that an employee will take root in the team and will be 100% consistent with the position offered to him. Smooth out disappointment and protect from potential labor disputes setting a trial period for a novice will help. If the employer did everything right, then with an employee who did not fit for objective reasons, you can painlessly issue a dismissal on a trial period, while saving time, effort and money for the company.

What is a probationary period and why is it needed, how long can it last?

The test period at a new place of work is a kind of adaptation period. This time, as well as possible, is suitable for getting acquainted with new responsibilities, assessing one's own strengths for the employee and making an impression about the skills, knowledge and skills of the newly hired employee for his superiors.

The only correct way in such a situation is to issue an order for the early termination of the probationary period due to pregnancy and, if possible, calmly wait for the onset of maternity leave. It is also strictly forbidden to push a woman to pay of her own free will.

pensioner

The experience accumulated over many years of work should help the pensioner to overcome the probationary period with brilliance and cope with all the tasks. And this is the only advantage that the "age" specialist has, because the other additional measure There is no protection for such employees in the Code.

But there is a slight advantage in terminating the employment relationship. The retirement age provides an undeniable argument in favor of immediate dismissal without prior notice. It is enough just to mention in the application that the employee intends to go on a well-deserved rest, and the order for the calculation should be ready on the same day. At the same time, the legislation does not contain a ban for a pensioner to find a new place for himself even on the very next day after dismissal.

decree

In the classical version, after the birth of a child, the mother seeks to stay on maternity leave as long as possible, using all the periods allowed in this sense. Labor Code allows a woman to calmly take care of a baby up to three years old and know that all this time her position is retained for her, art. 256 of the Labor Code of the Russian Federation.

But there are also emergency situations when a young mother has to look for a job, having a very young child in her arms. An employer who accepts such a lady into her team needs to remember that it is possible to establish a trial period for her only if her child is already one and a half years old. If up to 18 months even a few days are not enough, then you will have to accept a woman immediately into the state and also forget about dismissal at the initiative of the employer for some time.

In addition, you need to understand that an employee with a young child in her arms has the right to receive parental leave on any day until the baby is three years old. Whether a woman worked in this company before giving birth will no longer matter.

What to do if you were illegally fired while on probation?

The Labor Code of the Russian Federation provides for a unified procedure for dismissal during a probationary period - with a written explanation of the reason for the separation. At the same time, it should be sufficient to make the refusal to continue cooperation more obvious than the possibility of retraining a specialist.

If a dismissed employee suspects that his contract has been terminated not for reasons of competence, but for personal reasons, then there is every reason to apply to the regulatory authorities or the court. It is necessary to make such a decision faster, since no more than 30 days are allotted for reflection, art. 392 of the Labor Code of the Russian Federation. It is necessary to fight for the right to be restored to the same place, if not to continue working in a team, then at least for the sake of restoring justice, receiving material compensation, and also changing the wording of the reason for dismissal in the work book.

Successful completion of the probationary period is only the beginning of the journey, and if at the beginning it became clear that the continuation of cooperation would not be beneficial for any of the parties, then it is better to abandon the idea at the trial stage. The main thing to remember is that any dismissal has its own nuances, therefore, when applying for it, you do not need to take hasty and reckless steps.

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other normative documents to regulatory authorities.

It is said that an employee can terminate an employment contract with an employer during a probationary period on his own initiative. He can do this if, during the test, he realizes that this job is not suitable for him for a number of reasons.

In order to quit of his own free will during the test period, the employee must notify his boss 3 days before the expected date, and only after that write a letter of resignation.
The presence of a probationary period and its duration must be specified in the employment contract. If such is not concluded until the employee has passed the test, then a supplementary agreement, which will subsequently be attached to the employment contract.
A probationary period is assigned to an employee only with his consent. Therefore, if there are no conditions for a probationary period in the employment contract or an additional agreement is not signed, the employee is considered to be hired without a probationary period.
The maximum duration of the test period is 3 months. If the applicant applies for the position of the head or his deputy, as well as for the position of the chief accountant or his deputy, then the maximum test period is increased by up to six months.
The term is reduced to two weeks if a fixed-term employment contract is concluded with the applicant for a period of two months to six months. If the term of the employment contract is less than 2 months, then the employer does not have the right to appoint a probationary period.
The employer does not have the right to extend the period for checking an employee more than the value specified in the Labor Code of the Russian Federation. But he has the right to deduct from it those days when the tested employee was on sick leave or was actually absent from the workplace for good reasons.
Thus, the probationary period can be delayed for several months.

Dismissal during probation

Dismissal during the probationary period is possible if the employee warns his employer within 3 days.
The employer, in turn, must make a full settlement with the employee and give him his work book in his hands. Also the employer must not interfere with the dismissal of his own free will.
The employee must be paid:

• wages;
• compensation for unused vacation;
• severance pay. This is not provided for by the Labor Code of the Russian Federation, but may be provided for by an internal local act or a collective agreement.

The employer must do this no later than the date of dismissal. As seen, dismissal during a trial period of one's own free will is executed in the same way as without it.
The employee does not have to notify the employer of the reasons for his dismissal. Simple enough written notice. However, there are some peculiarities here:

• mandatory processing. In a normal situation, it is equal to two weeks. In case of dismissal of one's own free will during the test, this period is reduced to 3 days;
• if during the test he decides to quit financially responsible person, then he needs to transfer the cases to his successor.

Such a right is contrary to the norms of the Labor Code, and therefore must be enshrined in a local act. However, the Labor Code of the Russian Federation states that if a financially responsible person does not hand over the property entrusted to him, then he will bear personal financial responsibility for it.
It is not only about private commercial companies. On state and municipal enterprises probation periods are also set. The procedure for dismissal at will during the inspection is the same for both public and private enterprises.