The theory of everything. Theory of everything Labor Code Article 71 paragraph 3

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

Article 7 1. Test result for hiring

If the test result is unsatisfactory, the employer has the right to terminate the test before the expiry of the test period. labor contract with the employee, warning him about it in writing no later than three days, 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 employer's decision in court.
If the test result 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 payment of severance pay.
If the test period has expired, and the employee continues to work, then he is considered to have passed the test 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 about this in writing three days in advance.

A comment .
1. In the period probationary period the employer assesses the professional and business qualities of the employee, his ability to perform efficiently and conscientiously his obligations under the employment contract. If the employer, during the test period of the employee, comes to a negative conclusion regarding the suitability of the employee for the work entrusted to him, he has the right to terminate the employment contract with the employee due to the unsatisfactory test result. The employer has the right to make such a decision at any time during the probationary period, including without waiting for the day of the end of this period. The employer must notify the employee of its 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 borne in mind that the probationary period established by the employment contract, during which the employer has the right to decide to terminate the employment contract in connection with 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 the verification of professional and business qualities, the main reason for terminating an employment contract in accordance with Art. 71 of the Code is the absence of an employee necessary knowledge, skills or abilities to perform the assigned work, supported by appropriate evidence. Such evidence can be the release of defective products, failure to meet production standards, violation of the deadline for the delivery of work, etc. Evidence should be documented, for example, in the form of acts, conclusions with the attachment of primary documents, if possible (defective list, rejection protocol, etc.). ). Memorandum and service notes of the direct supervisor of the subject about the specific actions of the employee can also serve as evidence of the employee's inadequacy with the assigned work. In some cases, the legislation provides for procedures for evaluating test results. So, in accordance with the Instruction on the procedure and conditions for passing the test when recruiting for service in the customs authorities Russian Federation, approved by order of the State Customs Committee of the Russian Federation of April 30, 1998 No. 279, consideration attestation commission the results of the citizen passing the test 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 appearance at work in a state of alcoholic intoxication) is an independent basis for terminating an employment contract with any employee, including a test subject, therefore, the dismissal of an employee for these reasons should be made not according to Art. ... 71 of the Labor Code of the Russian Federation, and according to clause 6 (sub. “A” or “b”, respectively) part 1 of Art. 81 of the Labor Code of the Russian Federation.
3. The employer has the right to make a decision to terminate an 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 a primary trade union organization or is a member of an elected collegial body trade union organization(see Articles 373, 374 of the Labor Code of the Russian Federation and comments to them). The employer's decision on the unsatisfactory test result, which served as the basis for the dismissal of the employee, can be appealed in court (part 1 of the commented article).
4. Dismissal of an employee as not passing 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, then 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 the commentary to it). An employee who is 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 the commentary to it).
5. Sometimes, in order to preserve work for an employee who did not pass 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 the employee, since its establishment is allowed only once - when concluding an employment contract. Therefore, if the employer has doubts about the employee's ability to perform work of lower qualifications, it is recommended to terminate the employment contract due to an unsatisfactory test result and conclude another employment contract with the same employee for a different position, profession, specialty with the establishment of 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 from three to six months for a civil servant appointed to the position civil service by way of transfer from another government agency.
6. A probationary period is also established in order for the employee to be able to assess whether the proposed job is suitable for 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, 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 notify in writing about the dismissal on on their own on time.

When considering a case for reinstating a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of legal basis dismissal and compliance with the established procedure for dismissal is the responsibility of the employer (paragraph 23 of the Resolution of the Plenum The Supreme Court RF dated March 17, 2004 No. 2).

An employee dismissed without a legal basis or in violation of the established procedure for dismissal is subject to reinstatement in his previous job (Clause 60 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

To legally terminate an 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 familiarized the employee against signature with the rules of internal work schedule, job description and other local acts directly related to 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, he did not define his circle functional responsibilities, did not bring to him the requirements for the work he performed. This circumstance is confirmed by the absence on the job description of the employee's signature on familiarization with this instruction (determination of the Perm Regional Court dated September 23, 2013 No. 33-8703, determination of the St. Petersburg City Court dated June 22, 2011 No. 33-9356, dated 07.11.2011 No. 33-16471).

ruling of the Irkutsk Regional Court of 07.11.2013 No. 33-9120, rulings of the Moscow City Court of 09.04.2012 No. 4g / 8-2899 and of 26.06.2012 No. 11-11709, ruling of the Khabarovsk Regional Court of 13.07.2011 No. 33-4697.

Considering thatthe employer has not presented to the court evidence of familiarizationemployeein writing with job description , the panel of judges concludes that the employer's conclusion thatemployeedid not cope with his official duties, was premature, order of dismissalemployeeis illegal (definitionPrimorsky Regional Courtdated May 11, 2012 No. 33-3655).

Since, in violation of part 3 of Article 68 of the Labor Code of the Russian Federation, the employer F.O.A.employee K.O.A. was not familiar with the internal labor regulations and the provisions of the job description of the junior seller non-food products , then the employer's reference to the employee's violation of these rules when establishing the reason for the dismissal of K.O.A. is unreasonable. under article 71 of the Labor Code of the Russian Federation. Evidence otherwise in violation of Article 56 of the Civil Procedure Code of the Russian Federation was not presented to the court(ruling of the Tula Regional Court dated 11.11.2010 3 33-3182).

The above findings from judicial practice clearly demonstrate that without the employer 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 cite an unthinkable conclusion from judicial practice concerning the familiarization of the employee with his labor duties. Let me remind you that Articles 22, 68 of the Labor Code of the Russian Federation speak of familiarizing an employee with local acts against signature, that is, about a written familiarization form, and not about any other form of familiarization.

The employer searched for a candidate for the position of the head of the legal department, including by placing an advertisement on the website, which indicated the requirements for the candidate, a list of job duties, and working conditions.

The employee responded to the ad and was interviewed in two rounds on different days. In addition, she was sent by e-mail a copy of the job description of the head of the legal department from the website with a detailed description of the responsibilities. The plaintiff was told in detail about the activities of the company, its responsibilities, the expected results of work. The worker explained that she understood her responsibilities and agreed to take the position offered to her (ruling of the Moscow City Court dated 23.12.2011 No. 4g / 8-11588).

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

It so happens that some employers fire employees under Article 71 of the Labor Code of the Russian Federation only for non-compliance labor discipline or internal labor regulations. This approach of employers is not based on the law, since part 1 of Article 70 of the Labor Code of the Russian Federation says that, upon conclusion of an employment contract, by agreement of the parties, a condition may be provided for testing an employee in order to verify his compliance with 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 it is seen thatthe establishment of a probationary period for persons applying for work is primarily due to the need to assess business (professional) qualitiesan employee in the process of performing the assigned work (ruling of the Khabarovsk Regional Court of 25.05.2011 No. 33-3482, ruling of the Rostov Regional Court of 09.04.2009, ruling of the Tula Regional Court of 11.11.2010 No. 33-3182, ruling of the Krasnoyarsk Regional Court of 12.09.2011 No. 33-8783).

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

At the same time, the requirement for business and professionalqualitiesthe employee should be determined based on the nature of the job.Dismissal of an employee during the trial period and due to its failurecan only be associated with manifestations of professional qualitiesemployee directly in the process of work (ruling of the Khabarovsk Regional Court dated 25.05.2011 No. 33-3482, ruling of the Rostov Regional Court dated 09.04.2009, the decision of the Proletarsky District Court of the city of Tula dated 16.08.2010 No. 2-1235 - the position is confirmed by the ruling of the Tula Regional Court dated 11.11.2010 No. 33 -3182).

05/20/2011 by the employeremployeea notice of termination of an employment contract with him was served in accordance with part 1 of article 71 of the Labor Code of the Russian Federation - due to unsatisfactory test results due to improper performance of his job duties, expressed in absence from the workplace from 08:00 to 08:40 on 03/28/2011 for no good reason.

A test condition for an employee is established in order to verify his compliance with the assigned work. Any circumstances confirming the improper performance of the instructedemployeework as a plumber of the fourth category, neither in the conclusion nor in the order to terminate the employment contract is not specified (ruling of the Krasnoyarsk Regional Court dated 12.09.2011 No. 33-8783).

Measures may be taken against the violator of the internal labor regulations during the probationary period in accordance with the procedure established by the labor legislation of the Russian Federation disciplinary action, including dismissal under Part 1 of Article 81 of the Labor Code of the Russian Federation, that is, on a general basis (decision of the Proletarsky District Court of the city of Tula dated 16.08.2010 No. 2-1235 - position confirmedruling of the Tula Regional Court dated 11.11.2010 No. 33-3182).

As can be seen from the evidence in the case, the employer, in support of its arguments about the legality of the employee's dismissal, presented documents containing information about his violation of labor discipline, and not a single evidence was presented indicating that the employee did not have the appropriate knowledge, professional skills and abilities to perform their official duties as the controller of the teaching staff. However, the court considers it necessary to note that violation of labor discipline, improper performance of official duties, that is, the commission of disciplinary offenses, is an independent basis for terminating an employment contract and does not indicate the existence of grounds for dismissal due to an unsatisfactory test result (the decision of the Sterlitamak District Court dated 17.02.2011 No. 2-71 - not appealed).

According to the provisions of the Labor Code of the Russian Federation, the establishment of a test for an employee is aimed at checking the employee's compliance with the work performed, if the manager decided to terminate the contract with the employee, he must prove the employee's inadequacy for the position he holds.Failure by the employer to provide evidence of the employee's inadequacy for the position held, evidence that he does not have the appropriate qualifications that allow the employee to properly perform his job duties, indicates the illegality of dismissal under Article 71 of the Labor Code of the Russian Federation (determination of the Tyumen Regional Court dated 19.10.2011 No. 33-5283).

When resolving the dispute, the court correctly proceeded from the provisions of the above norms, providing that the right to assess the results of the employee's test belongs to the employer, who, during the probationary period, must find outbusiness and professional quality employee. At the same time, when an employee is dismissed as having failed the test, the employer is obliged to prove the fact of his unsatisfactory work.Having examined the circumstances of the case, the court came to an objective conclusion that such evidence, convincingly testifying to the improper performance by the employee of his official duties, the employer did not submit (ruling of the Khabarovsk Regional Court dated June 19, 2013 No. 33-3587).

In such circumstances, the reports of the master M.Ye.N. presented in the case materials, by virtue of Articles 59, 60 of the Civil Procedure Code of the Russian Federation, cannot be recognized by the judicial board as admissible and relevant evidence of the assessmentbusiness and professional qualities employee (definitionPrimorsky Regional Courtdated May 11, 2012 No. 33-3655).

Some courts believe that for the dismissal of an employee under Article 71 of the Labor Code of the Russian Federation, in addition to the unsatisfactory business (professional) qualities of an employee, one can also add non-compliance with labor discipline or internal labor regulations. Here are some examples.

The test is established to test the business and professional qualities of an employee. The employer, evaluating these qualities, decides on the fate of the employment relationship with this employee.

Since the employee during the trial period is subject to the provisions of labor legislation, local regulations, a collective agreement, an agreement, not only rights, but also obligations arising from these legal acts are assigned to him. In particular, in accordance with the Labor Code of the Russian Federation, an employee is obliged to comply with the internal labor regulations of the organization and labor discipline, comply with established labor standards, comply with labor protection and labor safety requirements, and take good care of the property of the employer and other employees.Thus, during the test, the employer assesses not only the level of professionalism of the employee and the quality of the employee's performance of the work entrusted within the framework of the specified labor function, but also his discipline.(ruling of the St. Petersburg City Court dated 09.29.2011 No. 33-14786).

When making the appealed decision, the court proceeded from the fact that the employer did not provide evidence of the employee's failure to fulfill his job duties,violation of labor discipline , unsatisfactory test results (determination of the Yaroslavl Regional Court dated 13.09.2012 No. 33-4848).

A similar conclusion is contained in the rulings of the Moscow City Court dated 06.06.2013 No. 11-15530 and dated 22.12.2011 No. 33-42756, the ruling of the Leningrad Regional Court dated 07.12.2011 No. 33-5827.

Thus, non-observance of labor discipline or internal labor regulations can only be an additional reason for dismissing an employee under Article 71 of the Labor Code of the Russian Federation, while such a reason for dismissal by some courts may be recognized as untenable.

3. Have employer, there was evidence of how the test took place, what was the meaning of the test.

The employer must provide evidence of how the level of professionalism of the employee and the quality of work performance were assessed (O assignment Of the Moscow Regional Court of 17.01.2012 No. 33-1156, the ruling of the Moscow City Court of 14.02.2011 No. 33-3766, the ruling of the Khabarovsk Regional Court of 19.06.2013 No. 33-3587).

From the foregoing jurisprudence it follows that the employer must have "peculiar" procedural evidence to assess the level of professionalism of the employee (that is, theoretical professional qualities) and the quality of work (that is, practical professional qualities).

To do this, the employer must approve the provision on the employee's test, preferably agreeing with the trade union, and follow this provision, as well as approve the form of the employee's test sheet and keep it throughout the test period.

4. Have employer, there was evidence of poor quality work.

A test in accordance with the provisions of the Labor Code of the Russian Federation is established for the purpose of testing the employee's ability to work entrusted to him, the test is carried out during the entire test period.Business valuationand professionalqualities of the employee belongs to the exclusive competence of the employer, that is, it is a subjective criterion that must be documented (ruling of the Moscow City Court dated May 16, 2013 No. 11-11663).

A similar conclusion is contained in the ruling of the Yaroslavl Regional Court dated 13.09.2012 No. 33-4848, ruling of the Moscow City Court dated 22.12.2011 in case No. 33-42756, ruling of the Leningrad Regional Court dated 07.12.2011 No. 33-5827.

Documentary evidence of an unsatisfactory test result can be:

1) various kinds of acts confirming non-performance or poor-quality performance of the work entrusted to the employee, due to the employment contract or job description;

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

3) witness testimony;

4) "peculiar" certification (test) sheet and minutes of the meeting of the "peculiar" certification (test) commission;

5) orders on the application of a disciplinary sanction to the employee (which is not contested or contested);

6) written complaints (claims) from customers.

These documents must relate to the period in which the employee passed the test. If these documents are not referenced in the notice of dismissal or, in extreme cases, in the order of dismissal, then we can safely say that these documents were drawn up after the employee's dismissal and will not be accepted by the court as relevant and admissible evidence by virtue of Articles 59, 60 of the Civil Procedure Code of the Russian Federation.

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

Evidencepoor quality workcan be: acts of non-compliance with labor standards, untimely or improper performance of the assigned work, release of defective products, violationsinternal labor regulations, other legal acts, the implementation of which is mandatory for the employee (rulings of the St. Petersburg City Court of 29.09.2011 No. 33-14786, of 22.06.2011 No. 33-9356, rulingPrimorsky Regional Courtdated May 11, 2012 No. 33-3655).

The employer does not need to rely on any one type of proof of poor-quality work (for example, on a memo or memo), but to collect as much evidence as possible.

The court gave a reasoned assessment to the testimony of witnesses and explanations general director that when deciding on the dismissal of an employee, he (the director) was guided by the oral opinion of the heads of departments about the absence of the need to continue labor relations with the employee and a memo, which is insufficient confirmation of the legality of the employee's dismissal.

Given in memo information that during the probationary period the employee had violations in his work in the absence of documentary evidence of these circumstances could not serve as a basis for recognizing the employee's test results as unsatisfactory (ruling of the Moscow City Court dated February 14, 2011 No. 33-3766).

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

The basis for the issuance of the dismissal order was the director's memos a separate subdivision... The employer did not provide evidence to support the facts stated in these memos. Thus, there are no grounds for recognizing the test results as unsatisfactory. (definition Moscow Regional Court dated 17.01.2012 No. 33-1156).

A similar conclusion is contained in the ruling of the Yaroslavl Regional Court dated 13.09.2012 No. 33-4848, ruling of the Moscow City Court dated 22.11.2010 No. 33-36201, ruling of the Moscow Regional Court dated 16.09.2010 No. 33-18016, ruling of the Leningrad Regional Court dated 25.02. 2010 No. 33-821.

Sometimes even one memo (service) note is enough to dismiss an employee under Article 71 of the Labor Code of the Russian Federation, although such cases are very rare in judicial practice. Let me give you an example.

The reason for the dismissal was a memo from the immediate supervisor of the employee (site manager) addressed to the director of the branch, in which, in particular, it was stated that the employee did not correspond to the position held in terms of the quality of work performed, he was lazy and lacking in initiative, the memo contained a proposal to terminate the employment an agreement with an employee as with not passed the test when hiring. The dismissal was recognized lawful(ruling of the Leningrad Regional Court dated 07.12.2011 No. 33-5827).

To dismiss an employee under Article 71 of the Labor Code of the Russian Federation, it is also necessary to establish which order of the manager the employee refused to fulfill. Since there was an explicit refusal, then before deciding that the employee did not pass the test, you should find out why the employee refused to fulfill this assignment.

If the order of the head is not due to an employment contract or job description, or as a last resort qualification characteristics specified in the Unified Qualification Handbook(for example, painting equipment for a welder), then refusal to fulfill such an order cannot be qualified as a failure of the employee to fulfill his job duties. And as a consequence of this, by virtue of Articles 21, 22, 60 of the Labor Code of the Russian Federation, this circumstance is not a reason for bringing an employee to disciplinary responsibility or for his dismissal under Article 71 of the Labor Code of the Russian Federation.

In addition, the fact of non-fulfillment of the manager's order by the employee must be documented. Let me give you an illustrative example.

According to the employment contract, the employee is obliged to perform work corresponding to the position held, internal documents of the organization, job description and current legislation, fulfillinternal labor regulations , requirements of internal documents, regulations and orders officials jar.

However, the presented job description does not provide for the employee's obligation to send information to another organization. There is no evidence that the employee was given such an order. (ruling of the Moscow City Court dated November 24, 2011 No. 33-38122).

A similar conclusion is contained in the ruling of the Leningrad Regional Court dated 09.02.2011 No. 33-659, the ruling of the Novosibirsk Regional Court dated 20.01.2011 No. 33-185.

5. The employer followed the dismissal procedure provided for in Part 1 of Article 71 of the Labor Code of the Russian Federation.

Upon termination of an employment contract under Article 71 of the Labor Code of the Russian Federation, the employer must:

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

2) indicate in the notification the reasons that served as the basis for the dismissal.

Failure by the employer, even separately, of the first or second of the above conditions concerning the dismissal procedure under Article 71 of the Labor Code of the Russian Federation, will entail the reinstatement of the employee at work by virtue 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 notification the dismissal does not indicate specific reasons for dismissal under Article 71 of the Labor Code of the Russian Federation, as a result of which the courts reinstate 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 requirement for a written reasoned warning to the employee about the termination of the employment contract at least three days in advance.Since the dismissal of the employee took place on the last day of the probationary period - 03/31/2011 - it should be recognized that compliance with this requirement implied the obligation of the employer to issue an appropriate written warning to the employee no later than 03/28/11. Meanwhile, the corresponding notification was drawn up and delivered to the employee only on March 29, 2011, that is, not three, but two days before the termination of the employment contract (ruling of the St. Petersburg City Court dated August 29, 2011 No. 33-13139).

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

At the same time, the judicial board considers it necessary to take into account that when the employee was fired, in addition to the violations indicated by the court, 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 provision on the establishment of a period for prior notification of the employee about the upcoming dismissal and the indication in the notification of the reasons that served as the basis for recognizing the employee as having failed the test are aimed at providing the employee with the opportunity to reasonably express his objections on the merits of the claims made and determine his further behavior in this situation.

It follows from the materials of the case that, in violation of the above-mentioned rule of law, in the notification of the employee about dismissal under Article 71 of the Labor Code of the Russian Federation, the reasons that served as the basis for recognizing the employee as having failed the test were not indicated(ruling of the St. Petersburg City Court dated 07.11.2011 No. 33-16471).

A similar conclusion is contained in the ruling of the St. Petersburg City Court dated 09.29.2011 No. 33-14786, the ruling of the Moscow City Court dated 09.04.2012 No. 4g / 8-2899, the ruling of the Leningrad Regional Court dated 09.02.2011 No. 33-659.

6. The employer must comply with the procedure for terminating 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 an employer's violation of Article 84.1 of the Labor Code of the Russian Federation, namely, failure to acquaint an employee with a dismissal order, was an additional basis for the employee's reinstatement at work upon his dismissal at the initiative of the employer (however, according to paragraph 7 of Article 81 of the Labor Code of the Russian Federation ).

In resolving the employee's claims in terms of reinstatement at work, the court came to the correct conclusion that the employer did not follow the dismissal procedure, in particular, the employee, in violation of Article 84.1 of the Labor Code of the Russian Federation, was not familiarized with the dismissal order, and information about the refusal to familiarize himself with the materials no cases (ruling of the Pskov Regional Court dated 01.03.2011 No. 33-266).

The court established a violation by the employer of the dismissal procedure established by Article 84.1 of the Labor Code of the Russian Federation. The court gave a proper assessment to the testimony of witnesses, from the comparison and analysis of which it follows that the employee was not familiar with the dismissal orders (determination of the Ulyanovsk Regional Court dated May 24, 2011 No. 33-1772).

Yulia Chistyakova, legal consultant, KPO U-Soft Group of Companies:

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

In the third paragraph of the second part of Article 57 of the Labor Code of the Russian Federation, the obligation to include in the employment contract the conditions on the labor function of the employee (work according to the position in accordance with staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee).

In accordance with the second paragraph of the second part of Article 21 of the Labor Code of the Russian Federation, the employee is obliged to conscientiously fulfill his labor duties assigned to him by the 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 referred to mandatory conditions labor contract, this condition should still be reflected in it. Otherwise, the employer will not be able to exercise his right to demand from the employee the performance of his labor duties (paragraph 5 of part 1 of article 22 of the Labor Code of the Russian Federation).

In his Letter dated 31.10.2007 No. 4412-6 "On the procedure for making changes to the job descriptions of employees," Rostrud indicated: “Despite the fact that the Labor Code does not contain a mention of job descriptions, it is an important document, the content of which is not only labor function employee, range of duties, limits of responsibility, but also qualification requirements presented to the position held.

Since the procedure for drawing up an instruction is not regulated by regulatory legal acts, the employer independently decides how to draw up it and make changes to it.

The job description can be an appendix to the employment contract, and also be approved as an independent document. "

In our opinion, it is optimal to arrange job description as an annex to the employment contract, so that the list of labor duties required by the employer is clearly indicated in the employment contract.

Artem Denisov, Managing Partner legal company"Genesis":

Labor Code RF does not disclose the concept of “gross violation of labor duties”. In practice, this is an obvious and guilty (intentional or reckless) violation by an employee of the duties provided for by regulatory legal acts, labor and collective agreements... In each case, the severity of the violation is determined taking into account the specific circumstances (clause 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 by the head of the organization (branch, representative office), his deputies should be regarded, in particular:

Failure to perform the functions assigned to these persons by the employment contract, which could lead to harm to the health of employees or property damage to the company;

The exercise by such persons of illegal commercial activities using the property of the organization. If, in carrying out such activities, the leader uses his official position and violates his job duties, this may be grounds for dismissal.

The employer must prove in court the fact of violation by the head of labor duties and the degree of his rudeness.

It is important to note: in order for the dismissal of a manager who grossly violated his labor duties to be legal, the fact of violation must be established by the commission. Accordingly, the employer is obliged to investigate this fact.

All actions of the members of the commission and the information obtained during the investigation are formalized by acts, certificates, memoranda, which are attached to the materials of the investigation.

The results of the commission's work are reflected in the corresponding act, which sets out the following information:

Circumstances of committing a gross violation of labor duties;

Consequences of the violation (damage caused);

The employee's fault;

Possible punishment for a person who has grossly violated his labor duties.

The act is signed by the members of the commission. The employee, whose guilt is established, must be familiarized with him against signature. In case of his refusal or evasion from signing the document, an appropriate act is drawn up.

Oleg Oznobikhin, specialist in labor law, Legal Center "Praktika" (Yoshkar-Ola)

Do you think you are Russian? Born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is not true.

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

Game? Wrong word. Correct word"imprinting".

The newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is inherent in most living creatures with vision.

For the first few days, newborns in the USSR saw their mother for a minimum of feeding time, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. The reception is wild in its essence and effectiveness.

All your childhood you wondered why you live surrounded by non-native people. Rare Jews on your way could do anything with you, because you were drawn to them, and others were repelled. And even now they can.

You cannot fix this - imprinting is one-time and for life. It is difficult to understand this, the instinct took shape when you were still very far from the ability to formulate. Since that moment, no words or details have survived. Only facial features remained in the depths of my memory. Those traits that you consider to be your own.

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System and Observer

Let's define a system as an object, the existence of which is beyond doubt.

An observer of a system is an object that is not part of the system he observes, that is, it determines its existence, including through factors independent of the system.

From the point of view of the system, the observer is a source of chaos - both control actions and the consequences of observational measurements that do not have a causal relationship with the system.

An internal observer is a potentially achievable object for the system in relation to which inversion of observation and control channels is possible.

An external observer is even a potentially unattainable object for the system, located beyond the event horizon of the system (spatial and temporal).

Hypothesis No. 1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of "gravitational radiation" penetrating the universe from all sides from the outside. The capture cross-section of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture onto another object is perceived as a force of attraction. It will be proportional to the product of the masses of objects and inversely proportional to the distance between them, which determines the density of the "shadow".

The capture of "gravitational radiation" by an object increases its chaos and is perceived by us as the passage of time. An object that is opaque for "gravitational radiation", the capture cross section of which is larger than the geometric size, looks like a black hole inside the universe.

Hypothesis No. 2. Internal observer

It is possible that our universe is observing itself. For example, with the help of pairs of quantum entangled particles spaced apart in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching the maximum density at the intersection of the trajectories of these particles. The existence of these particles also means the absence of a sufficiently large capture cross section on the trajectories of objects that can absorb these particles. The rest of the assumptions remain the same as for the first hypothesis, except:

Time flow

Third-party observation of an object approaching the event horizon of a black hole, if the “external observer” is the determining factor of time in the universe, will slow down exactly twice - the black hole's shadow will block exactly half of the possible trajectories of “gravitational radiation”. If the “inner observer” is the determining factor, then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the side.

Also, the possibility of combining these hypotheses in one proportion or another is not excluded.

Article 71. The result of the test when hiring

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

There are no new revisions of the article that have not entered into force.

Compare with the revision of the article dated 01.02.2002

In the event of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiry of the test period, notifying him of this in writing not 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 employer's decision in court.

If the test result 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 payment of severance pay.

If the test period has expired, and the employee continues to work, then he is considered to have passed the test 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 about this in writing three days in advance.

Amendments to Art. 71 of the Labor Code of the Russian Federation

References to Art. 71 of the Labor Code of the Russian Federation in legal advice

Article 71 of the Labor Code
20.05.2018 Good afternoon, Olya. The prosecutor is wrong. V Article 71 of the Labor Code of the Russian Federation clearly stated: If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the employee before the expiry of the test period
Dismissal under Part 1 of Article 71 without specifying the reasons for unsatisfactory work
12.12.2017 fixed-term employment contract? How long was the probationary period established in your employment contract and how long did you work at the time of your dismissal? According to Part 1 Art. 71 of the Labor Code of the Russian Federation if the employer dismisses an employee during the probationary period for unsatisfactory test results, then he is obliged to warn

20.09.2016 Good afternoon, Aryuna. Of course you can, and this right gives you Article 71 of the Labor Code of the Russian Federation, which says: 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

03.08.2016 term? If so, how much? My answer depends on the answers to these questions. See, if you were admitted with a probationary period, let's say for two months, then it is applicable Article 71 of the Labor Code of the Russian Federation

27.03.2016 Good evening, Svetlana. Yes, you can and it gives you this right Article 71 of the Labor Code of the Russian Federation, where it is said: 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

Can they be fired?
20.01.2016 one and a half years), the employer has the right to establish a probationary period. If the test result is unsatisfactory, the employer has the right to terminate the employment contract under Part 1 Art. 71 of the Labor Code of the Russian Federation... Dismissal on this basis is a dismissal initiated by the employer (Article 77 of the Labor Code of the Russian Federation). However, one must take into account Art. 261 of the Labor Code of the Russian Federation, where special
Probation
24.11.2015 there is either dismissal or automatic renewal labor relations... If, according to the test results, the employee is recognized as having not passed the test, on the basis of Article 71 of the Labor Code of the Russian Federation he can be fired even before the expiration of the final trial period. but with a warning three days in advance. But if the probationary period has already ended, then the employee can
Probation
24.11.2015 ... As for the termination of an employment contract at the end of the probationary period, it is not so simple. There is a certain procedure that is regulated in Art. 71 of the Labor Code of the Russian Federation... In case of an unsatisfactory test result, the employer must warn three days in advance, indicating the reasons that served as the basis for the dismissal

28.10.2015 Article 80 of the Labor Code of the Russian Federation will have to be executed. With regard to the probationary period. If in your employment contract there was a condition on the test when hiring, then in accordance with Article 71 of the Labor Code of the Russian Federation you have the right to terminate the employment contract by notifying the employer in writing three days before the dismissal. If you have more questions, please contact.

Probation
29.05.2015 Good evening, Eugene. According to Art. 71 of the Labor Code of the Russian Federation if you come to the conclusion that the job is not suitable for you, then you can resign of your own free will, notifying the employer about this in writing for
I'm pregnant, they want to fire me retroactively.
25.05.2015 Of course, you shouldn't have given this good news to your employer until after your probationary period. But now we will proceed from the current situation. V Article 71 of the Labor Code of the Russian Federation it says: If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the employee before the expiry of the test period
do you need working off?
20.05.2015 Good evening, Anna. You are not required to work if you are still on probation. V Article 71 of the Labor Code of the Russian Federation on this occasion it is said: 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
Dismissal
28.04.2015 Good evening, Anastasia. According to Art. 71 of the Labor Code of the Russian Federation if you are on probation and decide that the job is not suitable for you, then you must notify the employer about the dismissal 3 days in advance. If the employer
15.03.2015 Good afternoon, Vladimir. The employer really did something wrong and you were not obliged to write a letter of resignation. If you have not passed the test, then according to Art. 71 of the Labor Code of the Russian Federation the employer must justify this in writing and notify the employee about the dismissal three days in advance, indicating the reasons for the dismissal. Also legally your
The employer does not give the work book and settlement
14.03.2015 Given that your circumstances of dismissal are mostly oral, it will now be quite difficult to prove anything and you may well be fired for absenteeism. V Article 71 of the Labor Code of the Russian Federation it is said that if during the probationary period, the employer is dissatisfied with the work of the new employee and has a desire to terminate the employment contract with him
WORKING IN 2 WEEKS IF THE TEST PERIOD IS NOT 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 regulations Article 71 of the Labor Code of the Russian Federation, you have the right to resign by giving the employer three days in advance. If, during the trial period, the employee comes to the conclusion that the job offered to him is not for
01/22/2015 Good evening, Ravil. If you are officially employed (there is an entry in the work book), then on the basis of Art. 71 of the Labor Code of the Russian Federation You are required to notify the employer 3 days in advance of your dismissal (since you are leaving during the probationary period). If the entries in the work book and labor
Working off after dismissal
08.11.2014 have you had a probationary period? If it was and it has not yet been completed, then you can resign after three days, notifying the employer about this, as indicated in Article 71 of the Labor Code of the Russian Federation: 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
dismissal
31.10.2014 the employee must sign. Then a dismissal order is issued. Dismiss such that in connection with the unsatisfactory result of the probationary period on the basis of Article 71 of the Labor Code of the Russian Federation.. The grounds below indicate the number of the clause in the Employment Contract, as well as the registration number of the notice. V work book make the next entry

Commentary on Art. 71 of the Labor Code of the Russian Federation

1. An unsatisfactory test result that 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. In case of recognition of the job offered to him as unsuitable, the employee may resign of his own free will, notifying the employer about this in writing three days in advance.

3. After the expiry of the probationary period, 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 has not passed the test, the employer has the right to dismiss him, no later than three days in advance with the obligatory indication of the reasons that served as the basis for recognizing this employee as not having passed the test. It should be borne in mind that an unsatisfactory test result can be confirmed by any objective data. For example, about the untimely or poor-quality performance by the employee of the work entrusted to him, the facts of violation of the rules of the internal labor schedule of the organization, etc.

2. 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 term of probation has expired, and the employee has not been dismissed, he is considered to have passed the probation and his subsequent dismissal may take place on a general basis.

4. You need 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 comes to the conclusion that the proposed job does not suit him, then he can terminate the employment contract under own initiative by notifying the employer about this in writing three days in advance.

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