Theory of all. Theory of Total Labor Code Article 71 Paragraph 3

Part I.II. Section I II. . LABOR CONTRACT
Chapter 11. Conclusion of the employment contract

Article 7 1. Test result when receiving

In the unsatisfactory result of the test, the employer has the right before the expiration of the test term to terminate labor contract With an employee, warning him about this in writing no later than three days, indicating the reasons that served as the basis for recognizing this employee who could not withstood the test. Employer's decision The employee has the right to appeal against the court.
In the unsatisfactory result of the test, the termination of the employment contract is made without taking into account the opinion of the relevant trade union organ and without paying the output benefit.
If the test term has expired, and the employee continues to work, then it is considered to be a test and the subsequent termination of the employment contract is allowed only on general reasons.
If during the testing period the employee will come to the conclusion that the work proposed by him is not suitable for him, he has the right to terminate the employment contract on his own request, warning about this employer in writing in writing for three days.

Comment .
1. In the period test period The employer finds out the professional and business qualities of the employee, his ability to fulfill its work qualitatively and conscientiously for the employment contract. If the employer during the test of the employee comes to a negative conclusion regarding the conformity of the employee of the work entrusted to him, he is entitled to terminate the employment contract with the employee due to the unsatisfactory test result. To make such a decision the employer has the right at any time during the test period, including without waiting for the day of the end of this term. On your decision to terminate the employment contract. The employer is obliged to notify the employee in writing no later than three days before the termination date of the employment contract ( dismissal employee). Thus, it should be borne in mind that the trial period established by the labor contract during which the employer has the right to decide on the termination of the employment contract in connection with the unsatisfactory test result, is actually declining for three days necessary for the notice of the employee.
2. In its notice of termination of the employment contract, the employer indicates the reason for the basis for the recognition of this employee who could not withstood the test. Since the subject of the test was the inspection of professional and business qualities, the main reason for termination of the employment contract in accordance with Art. 71 Code is the absence of an employee required knowledge, skills or skills to fulfill the assigned work confirmed by relevant evidence. Such evidence can be the release of defective products, failure to fulfill the rules of development, violation of the period of delivery, etc. The evidence must be documented, for example, in the form of acts, conclusions with the application, by the possibility of primary documents (defective statement, clarification protocol, etc. ). The reports and official notes of the direct supervisor of the subject of the specific actions of the employee can also serve as evidence of the non-conformity of the employee of the commissioned work. In some cases, legislation provides for test results assessment procedures. So, in accordance with the instructions on the procedure and conditions of testing when receiving the service in the customs authorities Russian Federation, apply. Order of the State Customs Committee of the Russian Federation of 30.04.1998 No. 279, consideration is provided attestation Commission The results of passing a citizen test no later than three days before the expiration of the test. It should be noted that the committing a disciplinary offense (for example, a course or appearance at work in a state of alcohol intoxication) is an independent basis for termination of an employment contract with any employee, including and subjects, therefore, the dismissal of an employee for these reasons should be made not under Art . 71 of the Labor Code of the Russian Federation, and according to paragraph 6 (sub. "A" either "b" respectively) part 1 of Art. 81 TK RF.
3. The decision to terminate the employment contract in connection with the unsatisfactory test result of the employer is entitled to receive 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 part of the election collegial body trade union organization (See Art. 373, 374 TK RF and Comments to them). The decision of the employer about the unsatisfactory result of the test that served as the basis for the dismissal of the employee may be appealed to the court (Part 1 of the commented article).
4. The dismissal of the employee as a non-past test is possible only during the period of the test period. In cases where the trial period has expired, and the employee was not exempted from work, then it is considered to be withstrone the test. Dismissal after the expiration of the test period due to the unsatisfactory test result is not allowed. The subsequent termination of the employment contract concluded with the employee, after the test period is allowed only on the general basis (see Art. 77 of the Labor Code of the Russian Federation and comment on it). The employee dismissed due to the unsatisfactory test result is not paid output benefit In connection with the termination of the employment contract (see Art. 178 of the Labor Code of the Russian Federation and the comment on it).
5. Sometimes in order to preserve work for an employee who has not passed the test, the employer offers such an employee to transfer another job requiring lower qualifications. In this case, it should be borne in mind that the trial period in a new place cannot be established for the employee, since its establishment is allowed only once - when concluding an employment contract. Therefore, if the employer has doubts about the ability of the employee to perform the work of lower qualifications, it is recommended to terminate the employment contract due to the unsatisfactory test result and enter into another employment contract with the same employee for another position, profession, specialty with the establishment of a test term. This rule has an exception provided for in paragraph 4 of Art. 27 of the Law No. 79-FZ, on the possibility of establishing a test from three to six months by civil servants appointed to the post civil service In order of translation from another state body.
6. The probationary period is established also in order for the employee to appreciate whether his proposed work is suitable. If the employee comes to negative conclusion, it is entitled to terminate the employment contract at any time during the trial period, notifying its employer's decision in three days (part 4 of Art. 71 of the Labor Code of the Russian Federation). However, to terminate the employment contract, the employee does not need to motivate his conclusion that the work proposed by him is not suitable, it is enough to report on the dismissal in writing own willing within the deadline.

When considering the case on the restoration of the person, the employment contract with which is terminated on the initiative of the employer, the obligation to prove the presence legal foundation The dismissal and compliance with the established procedure of dismissal is assigned to the employer (paragraph 23 of the Resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2).

The worker dismissed without a legitimate base or with a violation of the established procedure for dismissal, is subject to restoration in the former work (clause 60 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

For legal termination of the employment contract under Article 71 of the Labor Code of the Russian Federation, the employer must have the following evidence:

1. Before the conclusion of the employment contract, the employer acquainted the employee under the painting with the rules of the internal labor routine, instructions and other local actsdirectly connected with labor activity employee (Articles 22, 68 of the Labor Code of the Russian Federation).

The employer did not familiarize the employee with the job description, that is, did not define his circle functional duties, I did not bring the requirements for the work performed by him. This circumstance is confirmed by the lack of an employee's signature on the official instruction on familiarizing this instruction (the definition of the Perm Regional Court of 09/23/2013 No. 33-8703, the definitions of the St. Petersburg City Court of June 22, 2011 No. 33-9356, from 07.11.2011 No. 33-16471).

the definition of the Irkutsk Regional Court of 07.11.2013 No. 33-9120, the definitions of the Moscow City Sudare 09.04.2012 No. 4G / 8-2899 and from 26.06.2012 No. 11-11709, the definition of the Khabarovsk regional court dated July 13, 2011 No. 33-4697.

Considering thatthe employer is not submitted to the court of evidence of familiarizationemployee in writing with job description , the judicial board comes to the conclusion that the withdrawal of the employer thatworker I could not cope with my job duties, I was premature, the order of dismissalemployee is illegal (definition Primorsky Regional Courtfrom 11.05.2012 № 33-3655).

Since in violation of part 3 of Article 68 of the Labor Code of the Russian Federation by the employer F.O.A.worker K.O.A. Not acquainted with the rules of the internal labor regulations and the provisions of the Junior Seller's job description non-food products , it is an unreasonable reference of the employer for violation by the employee of the specified rules in establishing the cause of the dismissal of K.O.A. under Article 71 of the Labor Code of the Russian Federation. Evidence of other in violation of Article 56 of the Civil Procedure Code of the Russian Federation, the court is not represented(Definition of the Tula Regional Court of 11.11.2010 3 33-3182).

The above conclusions from judicial practice Brightly demonstrate that without fulfilling the requirements of articles 22, 68 of the Labor Code of the Russian Federation, it is impossible to fulfill the requirements provided for in Articles 70, 71 of the Labor Code of the Russian Federation.

At the end of this chapter, I will bring an unthinkable conclusion from judicial practice regarding the familiarization of the employee with his labor duties. I remind you that Articles 22, 68 of the Labor Code of the Russian Federation talk about familiarizing the employee with local acts under the painting, that is, the written form of familiarization, and not about some other form of familiarization.

The employer was searching for a candidate for the position of head of the Legal Department, including by placing an ad on the Internet site, on which the requirements for the candidate, a list of official duties, working conditions were indicated.

The worker responded to the announcement, and it was held with two stages of interviews in different days. In addition, she was sent by e-mail A copy of the description of the vacancy of the head of the legal department from the website with a detailed description of the duties. The plaintiff is described in detail about the company's activities, its responsibilities, expected results of work. The worker explained that she was understood and agreed to take the position proposed to her (the definition of the Moscow City Court dated December 23, 2011 No. 4G / 8-11588).

2. Termination of the employment contract under Article 71 of the Labor Code of the Russian Federation was associated only with the manifestation of business (professional) employee qualities.

It happens that some employers dismiss workers under Article 71 of the Labor Code of the Russian Federation only for non-compliance labor discipline or the rules of the internal labor regulation. Such an employers' approach is not based on the law, since part 1 of Article 70 of the Labor Code of the Russian Federation suggests that, when concluding an employment contract, it may be provided for the condition for testing an employee in order to verify its compliance of the assigned work.

From the content of paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 sees thatthe establishment of the test period to work faces is primarily due to the need to evaluate business (professional) Qualityemployee in the process of fulfilling the commissioned work (Definition of the Khabarovsk regional court dated 25.05.2011 No. 33-3482, the definition of the Rostov Regional Court of 09.04.2009, the definition of the Tula Regional Court of 11.11.2010 No. 33-3182, the definition of the Krasnoyarsk Regional Court of 12.09.2011 No. 33-8783).

(definition

These were general conclusions, and now let's focus on specific cases confirming this position.

At the same time, the requirement for business and professionalqualitiesthe employee must be determined on the basis of the nature of the work.The dismissal of the employee during the test period and because of its irrepression may be associated only with manifestations of professional qualitiesemployee directly in the work process (Definition of the Khabarovsk Regional Court of 25.05.2011 No. 33-3482, Definition of the Rostov Regional Court of 09.04.2009, Decision of the Proletarian District Court of the city of Tula dated August 16, 2010 No. 2-1235 - Position is confirmed by the definition of the Tula Regional Court of 11.11.2010 No. 33 -3182).

05/20/2011 Employeremployee A notification was awarded to terminate the employment contract with him in accordance with Part 1 of Article 71 of the Labor Code of the Russian Federation - in connection with unsatisfactory test results due to the improper fulfillment of their official duties, expressed in the absence of the workplace from 08:00 to 08:40 28.03.2011 No good reason.

The testing of the employee is established in order to verify its compliance of the assigned work. Any circumstances confirming the improper fulfillment of the commissionedemployee Works on the position of the locksmith-sanitary engineer of the fourth category, nor in conclusion, nor in the order of termination of the employment contract is not specified (Definition of the Krasnoyarsk Regional Court of 12.09.2011 No. 33-8783).

To the violation of the rules of the internal labor regulation during the period of the test period in the established labor legislation of the Russian Federation measures may be applied disciplinary penalty, including dismissal in part 1 of article 81 of the Labor Code of the Russian Federation, that is, on the general basis (Decision of the proletarian district court of the city of Tula from 08/16/2010 No. 2-1235 - the position is confirmeddefinition of the Tula Regional Court of 11.11.2010 No. 33-3182).

As can be seen from the evidence in the case, the employer in support of their arguments about the legality of the dismissal of the employee presents documents containing information on the violation of labor discipline them, and not a single evidence is presented, indicating the absence of the employee of the relevant knowledge, professional skills and skills to fulfill them Official duties of the PPS controller. However, the court considers it necessary to note that violation of labor discipline, improper performance of official duties, that is, the commission of disciplinary misconduct is an independent basis for termination of the employment contract and does not indicate the availability of grounds for dismissal due to unsatisfactory test results (the decision of the Sterlitamak district court dated 17.02.2011 No. 2-71 was not appealed).

According to the provisions of the Labor Code of the Russian Federation, the testing of the employee aims to check the conformity of the employee of the work being performed if the head decided to terminate the contract with the employee, he must prove the discrepancy between the employee.Failure to submit by the employer of evidence of the non-compliance of the employee of the employed position, evidence that it does not have the relevant qualifications that allows employee to properly fulfill labor duties, indicates the illegality of dismissal under Article 71 of the Labor Code of the Russian Federation (definition of the Tyumen Regional Court of 10/19/2011 No. 33-5283).

When resolving the dispute, the court proceeds correctly from the provisions of the above standards, providing that the right to evaluate the results of the employee testing belongs to the employer, which in the period of the trial period should find outbusiness I. professional quality worker. At the same time, when dismissing an employee, as not as kept test, the obligation to prove the fact of his unsatisfactory work is assigned to the employer.Examining the circumstances of the case, the court came to the objective conclusion that such evidence, convincingly testify to the improper fulfillment by the employee of their official duties, the employer did not provide (Definition of the Khabarovsk Regional Court of 19.06.2013 No. 33-3587).

Under such circumstances, the reports of Master M.Y.N. reports presented in the case files, by virtue of Articles 59, 60 of the Civil Procedure Code of the Russian Federation, cannot be recognized as a judicial board as permissible and attributive evidence of the assessmentbusiness and Professional Qualities employee (definition Primorsky Regional Courtfrom 11.05.2012 № 33-3655).

Some courts believe that to dismiss the employee under Article 71 of the Labor Code of the Russian Federation to the unsatisfactory business (professional) qualities of the employee, it is also possible to add to the labor discipline or the rules of the internal labor regulation. I will give examples.

The test is established to verify the business and professional qualities of the employee. The employer, assessing these qualities, decides on the fate of labor legal relationship with this employee.

Since the provisions of labor legislation, local regulatory acts, a collective agreement, a collective agreement are applied to the employee during the testing period, and the duties arising from these legal acts are assigned to it. In particular, in accordance with the Labor Code of the Russian Federation, the employee is obliged to comply with the rules of the internal labor regulation of the organization and labor discipline, carry out established labor standards, comply with the requirements for labor protection and labor safety, carefully refer to the property of the employer and other employees.Thus, during the test, the employer estimates not only the level of professionalism of the employee and the quality of the execution by the employee charged under the conditioned labor function, as well as its discipline(Definition of the St. Petersburg City Court of 29.09.2011 No. 33-14786).

Taking the appealed decision, the court proceeded from the fact that the employer did not provide evidence of the non-fulfillment by the employee of official duties,violation of labor discipline , unsatisfactory test results (definition of the Yaroslavl Regional Court of 13.09.2012 No. 33-4848).

A similar conclusion is contained in the definitions of the Moscow City Court of 06.06.2013 No. 11-15530 and from 12/22/2011 No. 33-42756, the definition of the Leningrad Regional Court dated December 12, 2011 No. 33-5827.

Thus, non-compliance with the labor discipline or the rules of the internal labor regulation can only be an additional reason for the dismissal of an employee under Article 71 of the Labor Code of the Russian Federation, while such a reason for the dismissal by some courts can be considered insolvent.

3. U. the employer had evidence that the test was held, which was the meaning of the test.

It is necessary to submit evidence to the employer how the level of professionalism of the employee and the quality of work was estimated (about ratio Moscow Regional Court dated January 17, 2012 No. 33-1156, the definition of the Moscow City Court of 14.02.2011 No. 33-3766, determination of the Khabarovsk regional court dated 19.06.2013 No. 33-3587).

From the foregoing judicial practice, it follows that the employer must have "peculiar" procedural evidence of an assessment of the level of professionalism of the employee (that is, theoretical professional qualities) and the quality of performance (that is, practical professional qualities).

To do this, the employer must approve the provision on the test of the employee, it is advisable to coordinate it with the trade union, and follow this Regulation, as well as to approve the shape of the employee's test sheet and lead it during the entire test period.

4. W. the employer had evidence of poor-quality work.

The test in accordance with the provisions of the Labor Code of the Russian Federation is established for the purpose of verifying the ability of the employee to the work charged it, the check is carried out throughout the test term.Evaluation of businessand professional The qualities of the employee refers to the exceptional competence of the employer, that is, it is a subjective criterion that must be confirmed documentary (Definition of the Moscow City Court of 16.05.2013 No. 11-11663).

A similar conclusion is contained in the definition of the Yaroslavl Regional Court of 13.09.2012 No. 33-4848, the definition of the Moscow City Court of 12.22.2011 in case No. 33-42756, the definition of the Leningrad Regional Court dated December 12, 2011 No. 33-5827.

Documentary confirmation of the unsatisfactory test of tests can be:

1) various kinds of acts confirming the failure or poor-quality execution of the requested employee of the work due to the employment contract or the job description;

2) reports (service) notes or reports of the direct supervisor of the employee or person responsible for assessing the test results;

3) testimony;

4) "peculiar" attestation (test) list and protocol meeting "peculiar" certification (test) commission;

5) orders to apply to a disciplinary recovery employee (which is not challenged or not disputed);

6) Written complaints (claims) from customers.

These documents should relate to the period in which the worker passed the test. If these documents are not referenced to the notification of dismissal or, in the extreme case, in the order of dismissal, then we can safely say that these documents are compiled after the employee's dismissal and will not be adopted by the court as attributable and permissible evidence. by virtue of Articles 59, 60 of the Civil Procedure Code of the Russian Federation.

The decision on the results of the test is made by the employer on the basis of objective data characterizing the quality of work. The responsibilities of the employee arise from the content of the employment contract or the job instruction.

Evidencepoor-quality work may be: acts about non-fulfillment of labor standards, untimely or improper performance of entrusted work, the release of defective products, violationsinternal Labor Rules, other legal acts, the fulfillment of which is obligatory for an employee (definitions of the St. Petersburg City Court of 29.09.2011 No. 33-14786, from 06.22.2011 No. 33-9356, definition Primorsky Regional Courtfrom 11.05.2012 № 33-3655).

The employer should not be reached for any such type of evidence of poor-quality work (for example, on a report or service note), and collect as much evidence as possible.

The courted evaluation court gave testimony of witnesses and explanations general Director that when making a decision on the dismissal of an employee, he (director) was guided by the oral opinion of the leaders of the departments on the absence of the need to continue labor relations with the employee and the service note, which is insufficient confirmation of the legality of the dismissal of the employee.

Information given in the official note that during the period of the test period of the employee had violations in its work in the absence of documentary confirmation of these circumstances, could not serve as a basis for recognizing the results of testing worker unsatisfactory (Definition of the Moscow City Court of 14.02.2011 No. 33-3766).

A large number of reports (service) notes will not save the employer.

The basis for the issuance of the order was served by the director's official notes separed division. The employer did not provide evidence confirming the facts set forth in these service notes. Thus, the grounds for recognizing the results of testing unsatisfactory missing (definition Moscow Regional Court dated January 17, 2012 No. 33-1156).

A similar conclusion is contained in the definition of the Yaroslavl Regional Court of 13.09.2012 No. 33-4848, the definition of the Moscow City Court of 11/22/2010 No. 33-36201, the definition of the Moscow Regional Court of 16.09.2010 No. 33-18016, the definition of the Leningrad Regional Court of 25.02. 2010 No. 33-821.

Sometimes and one report (service) notes is enough to dismiss the employee under Article 71 of the Labor Code of the Russian Federation, although such cases in judicial practice are very rare. I will give an example.

The reason for the dismissal was the official note of the direct supervisor of the employee (head of the site) addressed the director of the branch, in which, in particular, it is indicated that the employee for the quality of work does not comply with the position being held, the work is lazy and not initiative, in the service note contained a proposal to terminate labor Treaty with an employee as with a not tested when taking a job. Dismissal is considered legitimate(Definition of the Leningrad Regional Court of 07.12.2011 No. 33-5827).

To dismiss the employee under Article 71 of the Labor Code of the Russian Federation, it is also necessary to establish which officer refused to fulfill the employee. Since the explicit refusal was followed, before deciding that the worker did not have a test, it should be found out for what reason the employee refused to fulfill this order.

If the instruction of the head is not due to the employment contract or the job description or in the extreme case qualification characteristicspecified in a single qualifying directory (for example, painting equipment for the welder), then the refusal to perform such an assignment cannot be qualified as a non-fulfillment by the employee of its employment duties. And as a result, by virtue of Articles 21, 22, 60 of the Labor Code of the Russian Federation, this circumstance is not a reason for attracting an employee to disciplinary responsibility or for its dismissal under Article 71 of the Labor Code of the Russian Federation.

In addition, the fact of non-fulfillment by the manager's instructions must have a documentary confirmation. I will give a visual example.

According to the employment contract, the employee is obliged to fulfill work that meets the post, internal documents of the Organization, the Officer instructions and existing legislationto performinternal Labor Rules , requirements of internal documents, provisions and orders officials bank.

However, the submitted job description does not provide an employee's responsibility to direct information to another organization. The data that the employee was given such an assignment is in fact there is no (Definition of the Moscow City Court of 24.11.2011 No. 33-38122).

A similar conclusion is contained in the definition of the Leningrad Regional Court of 09.02.2011 No. 33-659, the definition of the Novosibirsk Regional Court of January 20, 2011 No. 33-185.

5. The employer was complied with the dismissal procedure provided for by part 1 of article 71 of the Labor Code of the Russian Federation.

When terminating the employment contract under Article 71 of the Labor Code of the Russian Federation, the employer must:

1) notify the employee about the dismissal of at least three days before dismissal;

2) In the notification, specify the reasons that served as the basis for dismissal.

Failure to follow the employer, even individually of the first or second above, the condition concerning the procedure for dismissal under Article 71 of the Labor Code of the Russian Federation will entail the recovery of the employee at work into force of paragraph 60 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2. Most often employers in the notice The dismissal does not indicate the specific reasons for dismissal under Article 71 of the Labor Code of the Russian Federation, as a result of this, the courts are restored by workers at work.

In addition, the court did not take into account the violation by the employer of the dismissal procedure provided for in Article 71 of the Labor Code of the Russian Federation, namely, the requirements for the written motivated warning of the employee about the termination of the employment contract for no less than three days.Since the dismissal of the employee took place on the last day of the test period - 03/31/2011 - It should be recognized that compliance with the specified requirement assumed the obligation of the employer to make the appropriate written warning to the employee no later than 28.03.11. Meanwhile, the corresponding notice was drawn up and awarded an employee only 03/29/2011, that is, not for three, and two days before the termination of the employment contract (definition of the St. Petersburg City Court of 29.08.2011 No. 33-13139).

A similar conclusion is contained in the definition of the Saratov Regional Court of 26.08.2010 No. 33-4400.

At the same time, the judicial board believes necessary to take into account that when dismissing the employee, in addition to the violations of violations, the employer also violated the dismissal procedure, namely, the provisions of Article 71 of the Labor Code of the Russian Federation.

The provisions of this Regulation on the establishment of the Prior notice of the employee about the upcoming dismissal and instructions in the notification of the reasons that served to recognize the employee who could not withstood the test were aimed at providing an employee of the opportunity to argue their objections on the merits of the complaints made and determine their further behavior in this situation.

From the case materials it follows that in violation of the above rule of law in the notification of the employee about the dismissal under Article 71 of the Labor Code of the Russian Federation, the reasons that served to recognize the employee who could not withstand the test were not specified(Definition of the St. Petersburg City Court of 07.11.2011 No. 33-16471).

A similar conclusion is contained in the definition of the St. Petersburg City Court of 29.09.2011 No. 33-14786, the definition of the Moscow City Court of 09.04.2012 No. 4G / 8-2899, the definition of the Leningrad Regional Court of 09.02.2011 No. 33-659.

6. The employer must comply with the procedure for termination of the employment contract provided for in Article 84.1 of the Labor Code of the Russian Federation.

I will give two examples from judicial practice when the employer's violation of Article 84.1 of the Labor Code of the Russian Federation, namely the non-known employee with the order of dismissal, was an additional basis for recovering an employee at work when he was dismissal at the initiative of the employer (though, under paragraph 7 of Article 81 of the Labor Code of the Russian Federation ).

Performing the requirements of the employee in terms of recovery at work, the court came to the correct conclusion that the employer was not complied with the dismissal procedure, in particular, the employee in violation of Article 84.1 of the Labor Code of the Russian Federation was not familiar with the order of dismissal, and information about refusing to familiarize themselves There are no cases (definition of the Pskov Regional Court of 01.03.2011 No. 33-266).

The court established a violation by the employer by the established article 84.1 of the Labor Code of the Russian Federation dismissal procedure. The court is given to the appropriate assessment of the testimony of witnesses, from the comparison and analysis of which it follows that the employee has not been familiar with orders for dismissal (definition of the Ulyanovsk Regional Court of 24.05.2011 No. 33-1772).

Yulia Chistyakova, lawyer consultant KPO of the group of companies "U-Soft":

I would like to add a few words about the job instructions.

In paragraph, the third part of the second article 57 of the Labor Code of the Russian Federation consolidated the obligation of inclusion in the employment agreement on the employment function of the employee (office work in accordance with staffing schedule, profession, specialty, indicating the qualifications; a specific type of charged employee of the work).

In accordance with paragraph, the second part of the second article 21 of the Labor Code of the Russian Federation, the employee is obliged to conscientiously fulfill his work duties assigned to his employment contract.

Thus, although in Article 57 of the Labor Code of the Russian Federation, the indication of the List of Labor Duties of the employee is not attributed to mandatory conditions An employment contract, this condition still should be reflected in it. Otherwise, the employer will not be able to realize his right to demand from an employee of the execution of labor duties (paragraph 5 of part 1 of article 22 of the Labor Code of the Russian Federation).

In his letter dated 10/31/2007 No. 4412-6 "On the procedure for making changes to employee job descriptions", Rostrud indicated: "Despite the fact that the Labor Code does not make references to the job description, it is an important document containing which is not only labor function employee, a circle of job responsibilities, limits of responsibility, but also qualification requirementspresented to the post office.

Since the procedure for drawing up the instructions with regulatory legal acts is not resolved, the employer independently decides how to make it changes and make changes to it.

The job instruction may be an application to the employment contract, as well as be approved as an independent document. "

In our opinion, optimally draw up job description As an application to the employment contract, the list of employment responsibilities, the execution of which requires the employer, was uniquely listed in the employment contract.

Artem Denisov, Managing Partner legal company "Genesis":

Labor Code The Russian Federation does not disclose the concepts of "gross violation of labor duties." In practice, such is obvious and guilty (deliberate or careless) violation by the employee of the duties stipulated by regulatory legal acts, labor and collective agreements. In each case, the rudeness of violation is determined taking into account specific circumstances (paragraph 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). As a gross violation of labor duties, the head of the organization (branch, representation), his deputies should be regarded, in particular:

The non-fulfillment of the functions entrusted to these persons, which could cause harm to the health of employees or the company's property damage;

Implementation of those illegal commercial activities Using the property of the organization. If, in the implementation of such activities, the head uses his official position and violates his official dutiesThis can be the basis for dismissal.

To prove in court the fact of violation by the head of labor duties and the degree of its rudeness should be the employer.

It is important to note: that the dismissal of the head, rudely violating his labor duties, was legitimate, the fact of violations should be established by the Commission. Accordingly, the employer is obliged to investigate this fact.

All the actions of the Commission members and the information received during the investigation are shaped with acts, certificates, reports that are attached to the investigation materials.

The results of the work of the Commission are reflected in the relevant act, which sets out the following information:

The circumstances of the commission of a gross violation of labor duties;

Consequences of violation (damage caused);

Wines worker;

A possible measure of punishment of a person, rudely violating his labor duties.

Act is signed by members of the Commission. The worker whose wines is installed, should be acquainted with it. If it is refusing or evading the signing of the document, the corresponding act is drawn up.

Oleg Oznobihin,specialist in labor right, Legal Center "Practice" (Yoshkar-Ola)

Do you think you are Russian? Born in the USSR and think that you are Russian, Ukrainian, Belarus? Not. This is not true.

You are actually Russian, Ukrainian or Belarusian. But you think you are a Jew.

Game? Incorrect word. The correct word "Imprinting".

The newborn associates itself with the features of the face that watches immediately after birth. This natural mechanism is peculiar to most living beings with vision.

The newborns in the USSR several first days have seen the mother at least the feeding time, and most of the time saw the faces of the personnel of the hospital. By a strange coincidence, they were (and remain so far) for the most part Jewish. Reception wild in its essence and efficiency.

All childhood you wondered why you live surrounded by nonsense people. Rare Jews on your way could do anything with you, because you stretched to them, and others repel. And now they can.

Fix it. You will not be able to - Imprint disposable and for life. It is difficult to understand this, instinct took shape when it was still very far to the ability to formulate. From the moment the words nor the details have been preserved. Only features left in the depths of memory. Thoves that you consider your relatives.

3 comments

System and observer

We define the system as an object, the existence of which is no doubt.

The system observer is an object that is not part of the system observed by him, that is, defining its existence, among other things, the factors independent of the system.

The observer from the point of view of the system is a source of chaos - both the control effects and the consequences of observational measurements that have no causal relationship with the system.

The internal observer is a potentially achievable object for which inversion of observation channels and control exposure is possible.

An external observer is even a potentially unattainable object behind the system, which is beyond the horizon of the event event (spatial and temporary).

Hypothesis number 1. All-seeing eye

Suppose our universe is a system and it has an external observer. Then observation measurements can occur for example using the "gravitational radiation" permeating the universe from all sides. The cross section of the capture of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture to another object is perceived as the force of attraction. It will be proportional to the mass of the masses of objects and is inversely proportional to the distance between them, which determines the density of the "shadow".

The capture of the "gravitational radiation" object increases its chaoticity and is perceived by us as a flow of time. Object is an opaque for "gravitational radiation", the cross section of the capture of which is greater than the geometric size, inside the universe looks like a black hole.

Hypothesis number 2. Inner observer

It is possible that our universe observes itself. For example, with the help of pairs of quantum intricate particles separated in space as standards. Then the space between them is saturated with the likelihood of the existence of these particles of the process that reaches the maximum density at the intersection of the trajectories of these particles. The existence of these particles also means the absence of objects on the trajectories sufficiently great sections of the capture capable of absorbing these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

A third-party observation of an object approaching the horizon of the black hole event, if the defining factor of time in the universe is the "external observer", will slow down exactly two times - the shadow of the black hole will block exactly half the possible trajectories of "gravitational radiation". If the defining factor is the "internal observer", the shade will block the entire interaction path and the flow of the object falling into the black hole completely stops for view from the side.

The possibility of a combination of these hypotheses in one or another proportion is also not excluded.

Article 71. Test result when receiving

verified today
code from 01/01/2020
entered into force on 01.02.2002

There are no new notes that have not entered into force.

Compare with the editors of Article 01.02.2002

In the unsatisfactory result of the test, the employer has the right before the expiration of the test expires to terminate the employment contract with the employee, who warn it about this in writing no later than three days, indicating the reasons that served as the basis for the recognition of this employee who could not withstand the test. Employer's decision The employee has the right to appeal against the court.

In the unsatisfactory result of the test, the termination of the employment contract is made without taking into account the opinion of the relevant trade union organ and without paying the output benefit.

If the test term has expired, and the employee continues to work, then it is considered to be a test and the subsequent termination of the employment contract is allowed only on general reasons.

If during the testing period the employee will come to the conclusion that the work proposed by him is not suitable for him, he has the right to terminate the employment contract on his own request, warning about this employer in writing in writing for three days.

Changes Art. 71 TK RF.

Mention of Art. 71 TK RF in legal advice

article 71 of Labor Code
20.05.2018 Good afternoon, Olya. The prosecutor is wrong. IN art. 71 of the TC RF. It is clear: in the unsatisfactory result of the test, the employer has the right before the expiration of the test expire to terminate the employment contract with the employee
Dismissal by Part 111 without specifying the causes of unsatisfactory work
12.12.2017 fixed-term employment contract? What duration was the trial period in your workforce and how much did you work at the time of dismissal? According to part 1 art. 71 Labor Code of the Russian Federation if the employer dismisses the employee during the test period for unsatisfactory test results, then he must warn

20.09.2016 Good afternoon, Aryun. Of course you can, and this right gives you art. 71 of the TC RF.which says: if during the testing period the employee will come to the conclusion that the work proposed for him is not suitable for him, he has the right to terminate

03.08.2016 term? If was how much? My answer depends on the answers to these questions. See if you have accepted with probation permissible for two months, then applicable art. 71 of the TC RF.

27.03.2016 Good evening, Svetlana. Yes, you can and this right gives you art. 71 of the TC RF., where it is said: if the employee will come to the conclusion that the work proposed for him is not suitable for him, he has the right to terminate labor

Can they dismiss?
20.01.2016 One and a half years), the employer has the right to establish a trial period. In the unsatisfactory result of the test, the employer has the right to terminate the employment contract for Part 1 art. 71 TK RF.. Dismissal on this basis is the dismissal on the initiative of the employer (Art. 77 of the Labor Code of the Russian Federation). However, it is necessary to take into account Art. 261 TK RF, where special
Probation
24.11.2015 either dismissal or automatic extension labor relationship. If, according to the test results, the employee is recognized as the test has not passed on the basis of art. 71 of the TC RF. It can be fired before the expiration date of the test. But with a warning in three days. But if the probationary period is already over, the employee can
Probation
24.11.2015 . As for the termination of the employment contract at the end of the trial period, then not everything is so simple. There is a certain procedure that is regulated in art. 71 TK RF.. In the unsatisfactory result of the test, the employer must warn in three days indicating the reasons that served as the basis for dismissal

28.10.2015 Article 80 TK RF will have to fulfill. As for the trial period. If your workforce was a test condition when taking a job, then in accordance with art. 71 of the TC RF. You have the right to terminate the employment contract warning the employer in writing for three days before dismissal. There will be more questions, please contact.

Probation
29.05.2015 Good evening, Eugene. In accordance with S. art. 71 TK RF. If you came to the conclusion that the work does not fit you, then you can quit your own desire, warning about this employer in writing for
i am pregnant, they want to dismiss the back number.
25.05.2015 Of course, you did not follow this pleasant news to the employer, until the trial period is over. But now we will proceed from the current situation. IN art. 71 of the TC RF. It is said: in the unsatisfactory result of the test, the employer has the right before the expiration of the test term to terminate the employment contract with the employee
do I need to work?
20.05.2015 Good evening, Anna. You do not have to work out if you are still on the probationary period. IN art. 71 of the TC RF. On this occasion it is said: if the employee will come to the conclusion that the work proposed for him is not suitable for him, he has the right to terminate
Dismissal
28.04.2015 Good evening, Anastasia. In accordance with S. art. 71 TK RF. If you are on a test period and decided that you do not fit work, then you are obliged to warn the employer for 3 days. If the employer
15.03.2015 Good afternoon, Vladimir. The employer really did wrong and you did not have to write an application for dismissal. If you have not passed the test, then according to art. 71 TK RF. The employer should substantiate this in writing and warn the employee about the dismissal for three days indicating the reasons for dismissal. Also legally yours
The employer does not give the workbook and settlement
14.03.2015 Given that your dismissal circumstances are mainly orally, to prove anything will now be quite difficult and may well be fired for the program. IN art. 71 of the TC RF. It is said that if during the period of the trial period, the employer is dissatisfied with the work of a new employee and has a desire to terminate the employment contract with him
Working out 2 weeks, if the probationary period has expired?
12.03.2015 Good day, Natalia. In this situation, your employer is wrong. If you are still on probation and want to quit, then in accordance with the norms art. 71 of the TC RF.You have the right to quit the employer who warned the employer for three days. If during the test period, the employee will come to the conclusion that the work proposed for him is not for
01/22/2015 Good evening, Ravil. If you are officially officially (there is an entry in the employment book), then on the basis art. 71 TK RF. You must warn the employer for 3 days about dismissal (because you will leave during the period of the trial period). If records in the employment book and labor
Termination after dismissal
08.11.2014 Wouldn't you have a trial period? If he was not over yet, it is possible to quit after three days, warning about this employer, as indicated in art. 71 of the TC RF.: If, during the test, the employee will come to the conclusion that the work proposed for him is not suitable for him, he has the right to terminate the employment contract
dismissal
31.10.2014 The employee must sign. Then the order of dismissal is published. Dismiss such that due to the unsatisfactory result of the test term on the basis of art. 71 of the TC RF... In the grounds below indicates the point number in the employment contract, as well as the registration number of the notification. IN labor book To enroll the next post

If the test term has expired, and the employee continues to work, then it is considered to be a test and the subsequent termination of the employment contract is allowed only on general reasons.

Comment to Art. 71 TK RF.

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

2. In case of recognition of the work proposed by him, an inappropriate employee may abathed at his own request, warning his employer in writing for three days.

3. After the test period, the termination of labor relations with the employee is possible only on the general reasons provided for by law.

Second Comment on Article 71 of Labor Code

1. In the period of the test period, the employer must figure out the business and professional qualities of the employee.

If the employee has not stood the test, the employer has the right to dismiss it, warning it no later than three days with a mandatory indication of the reasons that served as the basis for the recognition of this employee who could not withstand testing. It should be borne in mind that the unsatisfactory test result may be confirmed by any objective data. For example, about the untimely either poor-quality execution by the employee of the work entrusted to him, the facts of violation of the rules of the internal employment regulation of the organization, etc.

2. The dismissal of the employee in the unsatisfactory result of the test can be produced until the end of the test.

Such dismissal is carried out without taking into account the opinion of the relevant trade union body, as well as without paying a day off.

3. If the test term has expired, and the employee was not dismissed, it is considered to be sustained the test and its subsequent dismissal may occur on the general grounds.

4. It is necessary to know the positions of Part 4 of Art. 71 Code where legal guarantees are installed for the employee itself. According to this article, if the employee came to the conclusion that the proposed work is not suitable for him, he may terminate the employment contract on own initiative, warning about this employer in writing for three days.

Perhaps it will be useful to read: