Article 71 of the Labor Code of the Russian Federation dismissal on one's own. Theory of everything. Probation - what is it?

22.05.2020

If the test result is unsatisfactory, the employer has the right to terminate the labor contract with the employee, having warned him about this in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. The employee has the right to appeal against the decision of the employer in court.

If the test result is unsatisfactory, the employment contract is terminated without taking into account the opinion of the relevant trade union body and no severance pay.

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.

If during the probation period the employee comes to the conclusion that the job offered to him is not suitable for him, he has the right to terminate the employment contract by own will by notifying the employer in writing three days in advance.

Comments to Art. 71 Labor Code of the Russian Federation

1. There are 3 reasons for termination of an employment contract with an unsatisfactory test result: 1) lack of professionalism; 2) lack of planned performance; 3) lack of planned labor efficiency.

2. In case of an unsatisfactory test result of a civil servant, the representative of the employer has the right, on the basis of Art. 27 federal law"On the state civil service Russian Federation":

1) provide a civil servant with a previously occupied civil service position;

2) before the expiration of the test period, terminate the service contract with a civil servant, notifying him in writing no later than 3 days in advance, indicating the reasons that served as the basis for recognizing this civil servant as not having passed the test.

3. If the test result is unsatisfactory, the employer terminates the employment contract with the employee under Art. 71 TK.

4. Often, when concluding an employment contract, an employee is promised certain conditions, but, having started work, he encounters others. According to the commented article, the employee also has the right to "test the organization" in which he entered. If the employee 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 (Article 80 of the Labor Code).

5. At the end of the test period, the publication of an order about this fact is not provided for in the Labor Code.

Today, the employer is careful when hiring new specialists, so as not to pay extra money to the incompetent. Business owners use Art. 71 of the Labor Code of the Russian Federation, which allows you to assign a person a probationary period. It should be noted that such a clause has always been in the legislation. Its law enforcement practice is quite complex, as it is replete with a mass of nuances, at first glance, simple and uncomplicated. Let's take a closer look at Art. 71 of the Labor Code of the Russian Federation.

Probation period - what is it?

In order to talk in detail about the features of dismissal, one should understand the position of the participants in labor relations in the situation under consideration. We are talking about an official contract, under which a condition is stipulated: a trial period. This is the time when the employee demonstrates his skills to the management, and the latter decides whether he is suitable for the enterprise, whether he can fulfill his duties. Art. 71 of the Labor Code of the Russian Federation speaks of the procedure for breaking off relations precisely during this period.

You need to know that the trial period must be agreed in advance. In practice, it is indicated both in the application for employment and in the corresponding order. The legislation says that this condition must be contained in the contract. In addition, there are categories of workers who are not assigned a test, they are not subject to Art. 71 of the Labor Code of the Russian Federation. These are, in particular, minor citizens, people who came to the service by transfer, who took elected positions and some others. The trial period is limited:

three months for ordinary workers;
six for executives.

This paragraph of the legislation describes the order of relations of the parties during the test. In particular, it provides the employer with the opportunity to fire an unsuitable employee. If a person clearly does not cope with his duties, then the administration initiates the termination of the contract. At the same time, Art. 71 of the Labor Code of the Russian Federation exempts the employer from the obligation to pay the worker severance pay. Another feature of this paragraph of the legislation is the exclusion from the process of dismissal of the trade union organization. On the one hand, this simplifies the entire operation, on the other hand, it does not prohibit the worker from defending himself. So, arbitrariness is forbidden to the administration. The management is obliged to notify the person of the reasons for dismissal. This is done in writing. A worker who does not agree with the conclusions of the administration is invited to apply to the court. He will have grounds - this is a conclusion about non-compliance with the stated requirements.

Art. 71 of the Labor Code of the Russian Federation with comments

Having considered the content of our article, we can begin to study the nuances. The most difficult thing in its implementation is the selection of evidence of a person’s inability to fully fulfill the duties assigned to him. The fact is that if the worker disagrees, this will have to be proved in court. The following documents can serve as evidence:

the text of the agreement;
job descriptions;
acts of inspections;
job application and others.

It is necessary to clearly, transparently and in detail state what is required of the employee. A document reflecting these issues is signed by the worker. Without his autograph, he will not be accepted as evidence. The same applies to other papers. Upon admission for a probationary period, it is necessary to notify the specialist in writing what duties he will perform.

How to prove unsatisfactory performance?

Perhaps the most difficult question, since it is not spelled out in detail in the legislation. Art. 71 of the Labor Code of the Russian Federation with comments (2016) obliges the administration to notify the specialist three days before the end of the test period that he is not suitable. But how to prove its failure is not described. This point must be approached very carefully, since the worker himself may not agree with the conclusions of the leadership. For example, it makes sense to draw up an act of non-fulfillment of any function indicated in the duties. It is advisable to do this on a commission basis, with the participation of the immediate supervisor and specialists of the relevant profile with sufficient work experience. The document being checked should be familiarized with the document. That is, it is required to organize control over his activities for the period of probation, for example, in the order for admission to the service, indicate responsible persons. They will testify in court if necessary.

How is the dismissal

Art. 71 of the Labor Code of the Russian Federation provides for the initiative of the administration in the event of a break in relations. In practice, a person can be denied further employment at any time during the test, with the exception of three last days. It is these terms that the legislation limits the notification of the worker about his insolvency. To fire him, the administration only needs to justify its decision. That is, a person is sent (or sent) a letter of notification of a break labor relations. Experts recommend adding to it acts of inspections that record cases of poor-quality or insufficient work. It is important to obtain the employee's signature stating that he has received the specified notice. After that, the personnel officer prepares a draft order. And then the dismissal is issued as usual. The order should refer to the article we are considering as the basis for its creation.

Features of the application of the article

Both the personnel officer and the subject himself need to know how the test time is calculated. After all, if a person has worked longer than the date of his graduation, then it is impossible to dismiss him in accordance with Art. 71 of the Labor Code of the Russian Federation. 2016 did not make any changes to this paragraph of the legislation. Practice has shown that some employers abuse it. So, people are recruited for a trial period, and then they threaten to fire them at the initiative of the administration. It "spoils" work book. To avoid such a situation, the workers themselves initiate a break in relations, which is permissible in principle. It turns out that the employer used the work of a person, but did not provide any prescribed preferences (vacation, severance pay). This process is regulated by only one paragraph of the legislation. It is forbidden to establish a trial period of more than two weeks when drawing up fixed-term contract(two to six months). The worker has no other means of protection.

Test time

The order and the contract describe the nuances of hiring. In particular, these documents must contain specific test dates. When calculating them, the time of sick leave and vacation is not taken into account. Naturally, both periods must be supported by relevant documents. Thus, the trial period may in some cases actually exceed the stated three (six) months. However, this does not lead to an automatic extension of the contract. When deciding this issue, the accompanying circumstances mentioned above are considered. If a person continues to work, the administration did not warn him of his dismissal in advance, then it is no longer able to initiate a termination of the contract under our article.

If you have been given a probationary period, then try to fully comply with the instructions, not to allow any deviations. In addition, being late or absent from the duty station may be considered a violation of discipline, which will also lead to dismissal. You need to follow the routine. When the administration puts the question point-blank, arguing that you are not suitable, then there are two ways:

initiate dismissal, so as not to "spoil" the labor;
fight.

In the second case, you will need all the documents, so you should request copies of them from the organization. If there are acts of your non-compliance, then the chances of winning are extremely small. But it's up to you.

1. Article 71 of the Labor Code of the Russian Federation states that the employer has the right to determine and decide on the non-compliance of the employee with the work assigned to him only during the period established for the test. Having recognized the results of the test as unsatisfactory, the employer may terminate the employment contract with the employee. The employer is obliged to notify the employee of the termination of the employment contract due to unsatisfactory test results no later than 3 days in advance.

The obligation of the employer to warn the employee about the termination of the employment contract with him in case of an unsatisfactory test result is an additional guarantee that ensures the protection of the employee's rights upon dismissal.

At the same time, if the probation period has expired, and the employee continues to work, he is considered to have passed the probation.

At the same time, the issuance of any special order on the final admission to work is not required.

The subsequent dismissal of such an employee is allowed only on general grounds.

2. Another additional guarantee for an employee upon termination of an employment contract with him due to unsatisfactory test results is provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation, the obligation of the employer to indicate in writing the reasons that served as the basis for recognizing the employee as having failed the test. This will allow the employee, if necessary, to more reasonably express his objections on the merits of the claims made and determine his further behavior in this situation.

If the employee does not agree with the recognition of the test results as unsatisfactory and the termination of the employment contract with him on this basis, he has the right to appeal the employer's decision to the court.

3. With an employee who has not passed the test, the employment contract is terminated on the basis of Part 2 of Article 71 of the Labor Code of the Russian Federation without taking into account the opinion of the relevant trade union body and without payment of severance pay. Dismissal on this basis is a dismissal at the initiative of the employer (clause 4, part 1, article 77 of the Labor Code). In this regard, dismissal on this basis should be carried out in compliance with the guarantees established for dismissed employees at the initiative of the employer. In particular, such employees cannot be dismissed during the period of their temporary incapacity for work and during the period of vacation (except in the case of liquidation of the organization or termination of activities individual entrepreneur) (part 6 of article 81 of the Labor Code).

4. The commented article establishes a simplified procedure for terminating an employment contract not only at the initiative of the employer, if it is an unsatisfactory result of the test, but also at the initiative of the employee himself, hired with a probationary period.

In accordance with Part 4 of Art. 71 of the Labor Code of the Russian Federation, if an employee hired on a probationary period during the probationary period comes to the conclusion that the work performed by him does not suit him, he has the right to terminate the employment contract by notifying the employer in writing 3 days in advance. The basis for termination of the employment contract in this case will be the employee's own desire. By general rule the employee has the right to terminate the employment contract at his own request, notifying the employer in writing no later than 2 weeks in advance (see comments to article 80).

Upon the expiration of the probationary period, the termination of the employment contract at the initiative of the employee is carried out on a general basis.

PART III. SECTION I II . LABOR CONTRACT
Chapter 11. CONCLUSION OF AN EMPLOYMENT CONTRACT

Article 7 1. The result of the test for employment

In case of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. The employee has the right to appeal against the decision of the employer in court.
If the result of the test is unsatisfactory, the termination of the employment contract is carried out without taking into account the opinion of the relevant trade union body and without paying severance pay.
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.
If during the trial period the employee 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.

Comment .
1. During the probationary period, the employer finds out the professional and business qualities of the employee, his ability to perform his duties under the employment contract in a quality and conscientious manner. If the employer, during the period of testing the employee, comes to a negative conclusion regarding the compliance of the employee with the work assigned to him, he has the right to terminate the employment contract with the employee due to an unsatisfactory result of the test. The employer has the right to make such a decision at any time during the probationary period, including without waiting for the end of this period. The employer is obliged to notify the employee in writing of his decision to terminate the employment contract no later than three days before the date of termination of the employment contract ( dismissal of an employee). Thus, it should be taken into account that the probationary period established by the employment contract, during which the employer has the right to decide to terminate the employment contract due to an unsatisfactory test result, is actually reduced by three days required to notify the employee.
2. In his notice of termination of the employment contract, the employer indicates the reason that served as the basis for recognizing this employee as not having passed the test. Since the subject of the test was a test of professional and business qualities, the main reason for terminating the employment contract in accordance with Art. 71 of the Code is the lack of an employee necessary knowledge, skills or abilities to perform the assigned work, confirmed by relevant evidence. Such evidence can be the release of defective products, non-fulfillment of production standards, violation of the deadline for the delivery of work, etc. Evidence must be documented, for example, in the form of acts, conclusions with the application, if possible, of primary documents (defective statement, culling protocol, etc.). ). Reports and memos of the direct supervisor of the subject about the specific actions of the employee can also serve as evidence of the employee's inconsistency with the assigned work. In some cases, legislation provides for procedures for evaluating test results. So, in accordance with the Instructions on the procedure and conditions for passing the test for admission to service in Customs Russian Federation, approved. order of the State Customs Committee of the Russian Federation dated April 30, 1998 No. 279, consideration is provided attestation commission the results of passing the test by a citizen no later than three days before the expiration of the test period. It should be noted that the commission of a disciplinary offense (for example, absenteeism or appearing at work in a state of intoxication) is an independent basis for terminating an employment contract with any employee, including the probationer, therefore, dismissal of an employee for these reasons should not be carried out under Art. . 71 of the Labor Code of the Russian Federation, and according to clause 6 (signed “a” or “b”, respectively) part 1 of Art. 81 of the Labor Code of the Russian Federation.
3. The employer has the right to take the decision to terminate the employment contract due to an unsatisfactory test result without taking into account the opinion of the relevant trade union body, even if the employee is a member of the primary trade union organization or is a member of the elected collegial body of the trade union organization (see Articles 373, 374 of the Labor Code of the Russian Federation and comments on them). The decision of the employer on the unsatisfactory result of the test, which served as the basis for the dismissal of the employee, can be appealed to the court (part 1 of the commented article).
4. The dismissal of an employee as not having passed the test is possible only during the probationary period. In cases where the probationary period has expired, and the employee has not been released from work, he is considered to have passed the probation. Dismissal after the expiration of the probationary period due to an unsatisfactory test result is not allowed. Subsequent termination of the employment contract concluded with the employee, after the expiration of the probationary period, is allowed only on a general basis (see article 77 of the Labor Code of the Russian Federation and commentary thereto). An employee dismissed due to an unsatisfactory test result is not paid severance pay in connection with the termination of the employment contract (see Article 178 of the Labor Code of the Russian Federation and commentary thereto).
5. Sometimes, in order to keep a job for an employee who has not passed the test, the employer offers such an employee a transfer to another job that requires lower qualifications. In this case, it should be borne in mind that a probationary period at a new place cannot be established for an employee, since its establishment is allowed only once - at the conclusion of an employment contract. Therefore, if the employer has doubts about the ability of an employee to perform work of a lower qualification, it is recommended to terminate the employment contract due to an unsatisfactory test result and conclude another employment contract with the same employee in a different position, profession, specialty with a probationary period. There is an exception to this rule, provided for in paragraph 4 of Art. 27 of Law No. 79-FZ, on the possibility of establishing a trial of three to six months for civil servants appointed to a civil service position in the order of transfer from another state body.
6. Probation It is also established so that the employee can assess whether the proposed job suits him. If the employee comes to a negative conclusion, he has the right to terminate the employment contract at any time during the probationary period by notifying the employer of his decision three days in advance (part 4 of article 71 of the Labor Code of the Russian Federation). However, in order to terminate the employment contract, the employee does not need to justify his conclusion that the job offered to him is not suitable, it is enough just to inform in writing about his dismissal of his own free will within the prescribed period.

If the result of the test is unsatisfactory, the termination of the employment contract is carried out without taking into account the opinion of the relevant trade union body and without paying severance pay.

If during the trial period the employee 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.

Commentary on Art. 71 Labor Code of the Russian Federation

1. An unsatisfactory test result, which gives the employer the right to terminate labor relations with the employee without taking into account the opinion of the relevant trade union and without paying severance pay, but with a warning to the employee about the upcoming dismissal, can be confirmed by any objective data available to the employer.

2. If the work offered to him is recognized as unsuitable, the employee may resign of his own free will, notifying the employer in writing three days in advance.

3. Upon the expiration of the probationary period, the termination of labor relations with the employee is possible only on the general grounds provided for by law.

Second commentary on Article 71 of the Labor Code

1. During the probationary period, the employer must find out the business and professional qualities of the employee.

If the employee did not pass the test, the employer has the right to dismiss him, warning him no later than three days in advance with the obligatory indication of the reasons that served as the basis for recognition this employee failed the test. It should be borne in mind that an unsatisfactory test result can be confirmed by any objective data. For example, about untimely or poor-quality performance by the employee of the work assigned to him, facts of violation of the internal labor regulations of the organization, etc.

2. The dismissal of an employee in case of an unsatisfactory test result may be made before the end of the test period.

Such dismissal is carried out without taking into account the opinion of the relevant trade union body, as well as without payment of severance pay.

3. If the probation period has expired, and the employee has not been fired, he is considered to have passed the probation and his subsequent dismissal may take place on a general basis.

4. It is necessary to know the provisions of Part 4 of Art. 71 of the Code, which establishes legal guarantees for the employee himself. Under this article, if an employee has come to the conclusion that the proposed job does not suit him, then he can terminate the employment contract on his own initiative, notifying the employer in writing three days in advance.