Peculiarities of dismissal of an employee under Article 71 of the Labor Code of the Russian Federation (Dismissal due to unsatisfactory test results)

Article 71 of the Labor Code is intended to describe possible ways for an employer to use the test results of a candidate for a position when employing him.
It spells out options for action both in case of failure and success of the candidate. Labor Code of the Russian Federation
dated December 30, 2001 N 197-FZ

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Passing the trial period

The Labor Code of the Russian Federation establishes the obligations and rights of the parties to labor relations.
The legislation tries to defend the interests of both parties, which is why the code contains articles on a probationary period when hiring. It helps the boss assess the employee’s professionalism, and the employee understand whether the position is suitable for him. The probationary period is established by mutual agreement upon signing the employment contract. If this clause is missing, then the employee is hired without testing. The employer must remember that there are categories of persons who are prohibited from conducting an inspection:

1. Pregnant women or those raising small children under one and a half years old.
2. Minor citizens.
3. Young specialists who have a diploma of higher or secondary education, getting a job for the first time this year after graduation.
4. Employees who were invited to a transfer position.
5. Persons who have been elected to paid employment.
6. Citizens with whom a contract has been concluded for 2 months.

For others, a test can be set, but it is limited in time. For mid-level employees this period is 3 months. If a person is hired for a leadership position, he can be checked for 6 months. When concluding a fixed-term employment contract for 2-6 months, the probationary period is a maximum of 2 weeks.
If an employee is sick, this period does not count towards him. Before the expiration of the term, the parties can terminate the employment relationship. But first they need to study Art. 71 of the Labor Code of the Russian Federation with comments 2017. Employees are dismissed without taking into account the opinion of the trade union, and they are not paid severance pay. The employer is obliged to indicate the reason for the employee’s failure to pass the test.

If the employee continues to work after the expiration of the probationary period, then he is considered to be enrolled in the main staff. In this case, his dismissal will occur according to the general rules.

Legality of termination of a contract if the result is unsatisfactory

Article 71 of the Labor Code of the Russian Federation regulates the issue of legal dismissal if an unsatisfactory result is obtained during a citizen’s probationary period. It gives the employer the right to dismiss an employee from his position without taking into account the opinion of the trade union, but he is obliged to explain the reason. Termination of the contract is considered legal in the following cases:

• The person is not suitable for the position for which he is applying.
• The potential employee failed to cope with the tasks assigned to him.
• During the work, unsatisfactory results were demonstrated.
• Professional skills turned out to be insufficient, which affects the quality of work.

In this case, the employer uses Article 71 of the Labor Code. At the same time, the personnel service explains to the person what exactly was the reason for such a decision. But you should not think that the probationary period is beneficial only to companies, since it allows you to terminate contracts early on your own initiative. Employees also have the benefit of testing the organization or position against expectations. If they do not come true, he can leave at any time without consequences for himself.

Guarantees for the employee

If you study Art.
71 of the Labor Code of the Russian Federation with comments 2021 in the new edition, you can see several explanations that give certain guarantees to the employee. When an employee fails to cope with his professional duties, the manager has the right to fire him. In this case, the employer is obliged to notify him of his plans three days in advance. An employee can be sure that he has passed the test if the period has expired and no negative decisions have been made by his superiors. The transition from trainee to employee occurs automatically; no additional order is required from the manager to accept the position.

According to Article 71 of the Labor Code, when dismissing, the boss indicates one of three reasons for his decision:

1. The employee lacks professionalism.
2. The employee was unable to complete the assigned task or did not show positive results in his work.

The decision is in writing. In this case, the employee has the opportunity to defend his interests before the employer, and, if necessary, in court.

If the initiative to terminate the employment relationship comes from the employer, then the entry in the work book is made with reference to clause 4, part 2 of Art. 77 Labor Code of the Russian Federation .
Accordingly, an employee can claim the guarantees established by law upon dismissal by decision of the boss. If an employee is in the hospital, then it will not be possible to terminate the contract with him. The employee has the right to terminate the employment relationship at his own request. He can make this decision during the probationary period. He must notify the employer of his decision 3 days in advance.

Article 71 of the Labor Code of the Russian Federation. Result of the pre-employment test (current version)

1. The employer has the right to make a decision on the incompatibility of the employee with the work assigned to him only during the period established for the test. He has no right, incl. and with the consent of the employee, extend (increase) this period. Having recognized the test results as unsatisfactory, the employer must terminate the employment contract with the employee. Moreover, during the probationary period, the employment contract with the employee can be terminated at any time as soon as facts of the employee’s incompatibility with the work performed are discovered. The employer is obliged to notify the employee of the termination of the employment contract with the employee due to unsatisfactory test results no later than three days in advance.

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

However, if the test period has expired and the employee continues to work, he is considered to have passed the test. In this case, the issuance of any special order on final hiring is not required. Subsequent dismissal of such an employee is permitted only on general grounds.

2. Another additional guarantee for an employee upon termination of an employment contract with him in connection with unsatisfactory test results is provided for in Part 1 of Art. 71 the employer is obliged 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 cogently express his objections to the substance of the claims made and determine his further behavior in this situation.

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

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

4. Article 71 establishes a simplified procedure for terminating an employment contract not only at the initiative of the employer, if we are talking about an unsatisfactory result of the test, but also at the initiative of the employee himself, hired on a probationary period.

In accordance with Part 4 of Art. 71, if an employee hired on a probationary period during the probationary period comes to the conclusion that the work he performs is not suitable for him, he has the right to terminate the employment contract by notifying the employer in writing three days in advance. The basis for termination of the employment contract in this case will be the employee’s own desire. As a general rule, an employee has the right to terminate an employment contract at his own request by notifying the employer in writing no later than two weeks in advance (see commentary to Article 80).

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

Comment source:

Rep. ed. Yu.P. Orlovsky “COMMENTARY ON THE LABOR CODE OF THE RUSSIAN FEDERATION”, 6th edition ACTUALIZATION

ORLOVSKY Y.P., CHIKANOVA L.A., NURTDINOVA A.F., KORSHUNOVA T.YU., SEREGINA L.V., GAVRILINA A.K., BOCHARNIKOVA M.A., VINOGRADOVA Z.D., 2014

Employer Responsibilities

Article 71 of the Labor Code of the Russian Federation regulates the issue of dismissal of an employee for failing to complete the probationary period. This is what the HR department should follow in the event of termination of the contract. The main responsibilities of the employer are:

• Establishing a one-time inspection period, and it cannot be more than 3 months for ordinary positions and six months for management positions.
• Notifying the person of his rights and responsibilities during the probationary period.
• Promptly provide information about the continuation of cooperation or termination of the employment contract. In the latter case, the reasons for the person’s inadequacy for the position for which he is applying are indicated.
• Provide non-full-time employees with the same rights as core personnel.

Attention! A failed probationary period is not grounds for making an entry in the employment record; this is not documented anywhere, so as not to spoil your reputation in the future.

Who cannot be fired during the probationary period?

Labor legislation contains a list of persons who cannot be hired for a probationary period, these are:

• pregnant women (with a medical certificate confirming the fact of pregnancy);
• minor workers under the age of 18;
• young professionals getting a job for the first time after graduating from university;
• employees hired for an elective position by election or entering work based on the results of a competitive selection;
• employees with whom a contract is concluded for a period not exceeding two months; employees who were transferred from one position to another within the same company or from one employer to another by agreement.

This list is not complete and may be supplemented by regional laws.

The main advantages of the probationary period

Dismissal during probationary period

Dismissal during the probationary period can be either at the initiative of the employee or at the initiative of the employer.

at the initiative of the employee - a common basis for terminating an employment agreement. The reasons may vary. If they are of a personal nature, then such a decision will be called “of one’s own free will.”

In order to properly formalize his resignation, without contradicting the Labor Code of the Russian Federation, the employee needs to fill out an application addressed to the director in free form three days in advance, notifying him of his resignation.

This application is made in one copy in writing. Work will be the time for which the notice is written before the date of dismissal.

The employer is obliged to sign the application without requiring additional explanations.

at the initiative of the employer - if, according to the results of the inspection, the manager for some reason remains dissatisfied with the new employee, then he will have no choice but to dismiss the employee during the probationary period.

Article 71 of the Labor Code of the Russian Federation states that the employer has the right to terminate the probationary period and terminate the agreement with the employee.

The employer must provide the employee with notice of his decision 3 days before the scheduled dismissal. To do this, the director is required to draw up a notice indicating the reasons for the employee’s dismissal. The employer gives one copy to the person being dismissed, and keeps the other for himself.

The procedure for registering dismissal during the probationary period is presented in the table:

· make all payments;

· On the day of dismissal, an order is issued;

· the employee is issued a work book with a record of dismissal;

Features of the probationary period

The main feature of the probationary period is the simplified process of terminating the employment contract.

If an employee does not like the job for which he was hired, then he can send a letter of resignation to management, working only three days instead of two weeks.

The management of the enterprise, if it wishes to terminate the working relationship with an employee undergoing testing, will have to draw up a written notice to the employee about this, explaining the reasons for recognizing the test as failed, 3 days before dismissal.