Probation Period -- General Issues and Enforcement

UnknownAlexandra Bludyan ��
At first glance, it may seem like the employer has every means necessary to test a new employee by setting a probation period in accordance with the Labor Code. However, probation periods cannot be set for all employees, and it is not always simple to use the opportunity provided in the law to terminate the agreement if the test is unsatisfactory. We shall discuss certain practical issues that need to be remembered in regard to probation periods, including in the case of failed probations.

When hiring, it is important to remember that not all new employees can be given a probation period, exceptions include: pregnant women and mothers of children under 3, people hired by transfer from another employer under an agreement between employers, and people graduating from an accredited primary, secondary or higher vocational educational establishment and starting work according to their qualifications within one year of graduation. (A full list of the exemptions is in the Labor Code.) Note, though, that in the last case new graduates must be hired in a position they obtained a qualification for. For example, if an employee with language qualifications is hired as a sales manager, even if it is within one year of graduation, the position does not relate to the qualifications and a probation period may be imposed.

Maria Landau

As a general rule, the term of the probation period cannot exceed three months, or six months for heads of organizations and their deputies, chief accountants and their deputies, branch directors, heads of representative offices, and other separate divisions of organizations.

One common way of setting the probation period can trip employers up. According to the Labor Code, temporary incapacity and other periods of absence from work are not counted toward the probation period. When setting probation periods, employers often state the length of the probation period and the end of the period in the employment contract. For example, "the employee is hired as of Jan. 1, 2009, with a probationary period of three months, until March 31, 2009, inclusive." Do not forget that by writing the end date of the probation period, you clearly indicate that the probation will end on that date regardless of whether the employee has worked in that period or been ill. In order to be able to appraise the employee properly, without losing any probation time, the probation period should be set in calendar months and days.

Dismissal upon poor results of probation is, contrary to widespread belief, a complex legal procedure. Many employers mistakenly assume that during the probation period the employee may be dismissed at will without explanation, simply because he is on probation. In fact, the employer can only terminate for this reason if there are serious grounds for declaring that the employee failed the probation. Only professional and business characteristics can be used in declaring that the employee failed his probation. In substantiation of the employee's failure to pass probation, the employer must document failures to perform or satisfactorily perform duties, or breaches of employment discipline. Practice shows this is practically impossible if the employee has not been informed of his duties against signature. In this case it is considered that the employee's duties have not been determined, and therefore it is not possible to show they were not performed. Therefore the employee should sign off on his list of duties at hiring, or the duties should be set forth in the employment contract.

Remember, the employee is entitled to challenge a dismissal in court. Such disputes are not rare because a dismissal over failure to pass probation is, obviously, negative, and employees have a strong interest in getting it changed. Therefore, many employers prefer to offer employees who failed their probation a dismissal by mutual agreement, and even use other practical means to make termination of the employment contract mutually beneficial.

Employees must be given at least three days notice of dismissal for failure to pass the probation period. If the probation period has expired, and the employee is still employed, he must be treated as having passed the probation and subsequent termination will only be possible on general grounds.