Employers often take advantage of the legal opportunity to hire a worker on probation. However, such an "uncertain" position of the employee until the end of the test does not mean that his rights are protected less than other employees. In particular, such an employee can be dismissed only on the grounds provided for by the Labor Code of Russia.
So, if an employee is actually admitted to work, an employment contract has not yet been concluded with him and a separate agreement has not been signed before starting work on assigning him a probationary period, it is impossible to dismiss him for failing to pass the test, therefore he is considered hired without a trial.
There are cases when the employer dismisses an employee as not passing the test, referring to the fact that the condition of the probationary period is contained in the collective agreement of the enterprise. But, the Labor Code of the Russian Federation clearly states that the absence of a test condition in an employment contract means that the employee is hired without a test. That is, the condition of the test must be spelled out precisely in the employment contract.
The dismissal of an employee after the expiration of the probationary period on the grounds that he did not pass the test is also not allowed, since if the probation 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. But here it must be remembered that the general term of probation according to the law is no more than 3 months, and the list of positions that can be tested for up to 6 months is closed. And if, for example, an employee was accepted with a trial for 6 months, but his position is not included in this list, it is impossible to dismiss him after 4-6 months due to an unsatisfactory test result, because the legal trial period for him - 3 months - has already expired.
An employee who got a job for the first time after receiving higher education due to failure to pass the test cannot be dismissed. For such persons, a trial cannot be established at all, therefore, even if the employment contract contains conditions for a probationary period - dismissal on the basis of Part 1 of Art. 71 of the Labor Code of the Russian Federation is not allowed.
As judicial practice shows, one cannot be dismissed for failing to pass the test if the employee has not fulfilled an assignment that is not part of his job duties.
In addition, as an additional guarantee upon the dismissal of an employee who has not passed the test, the law establishes the obligation of the employer to notify in writing of the upcoming dismissal. Failure to comply with this requirement may result in the dismissal being declared unlawful.
It is also important to know that the dismissal of an employee who has not passed the test is dismissal at the initiative of the employer; you cannot dismiss workers who are in the period of temporary disability and employee leave, including maternity leave, as well as women with children under the age of 3 years old. The concealment by an employee of temporary disability at the time of dismissal is an abuse of the right, as a result of which the court may refuse to satisfy the claim for recognizing the dismissal as illegal.
