A probation period is common for employment contracts in Russia. With certain exceptions, the standard term of a probation period is three months, and for some managing positions this can be prolonged to six months.
A probation period per se does not mean that an employee can be dismissed without any reason within the probation term. During the probation period, the employer is entitled to terminate the employment contract only if the new employee has shown unsatisfactory work results which can be observed at any time during the probation period. So, the advantage for an employer is shorter terms of dismissal and an easier procedure of termination compared to usual circumstances, when the dismissal of the employee is, in practice, much harder.
Although the procedure may seem easy for an employer who is not well-versed in practical labor law, such dismissal raises a conflict with the employee, and in the majority of cases, an employee dismissed on the basis of “unsatisfactory results during the probation period” appeals to the court that the dismissal was illegal and requests that the basis of the employment termination in the labor documents be changed. In the case of court proceedings, the employer needs to be proactive in being able to prove a) the legality of the grounds for termination; and b) compliance with the statutory procedure for termination.
Acceptable grounds for termination include mistakes and defects in work, improper execution of official orders, failure to perform work on time, etc. Usually, employers who wish to support their position in the case of a dispute sign a plan of the work for the probation period with the employee, with a specified list of tasks and dates for their fulfillment. Breaches of the company’s disciplinary rules also can be taken into account. Notwithstanding the foregoing, court practice reveals that the assessment of an employee’s business qualities remains at the discretion of the employer – a subjective criterion which must be duly documented and supported by evidence. To present reliable evidence in court, the employer has to monitor the work of the new employee from the beginning of the employment period and make written notification to the employee of any problem. Evidence presented in court may include documents prepared by the employee with mistakes in them, notes from senior managers to the employee, and a written protocol with conclusions on the results of the probation period.
Thus, Russian labor regulation does not provide a list of possible breaches by an employee and necessary supporting evidence, which can vary from case to case. Written evidence is usually preferable in a court dispute with an employee, but evidence of an employee’s failure to perform satisfactorily can also be presented in the form of emails and the witness testimony of other employees of the company. In each case, the judges will evaluate the presented evidence and decide at their own discretion.
The employee will also have a good chance to challenge the dismissal in court if the employer failed to comply with the formalities of employment and/or dismissal procedures. In order to mitigate these risks, the employer needs to remember the following: termination of employment is possible only before the probation period expires; and three days’ prior written notice, clearly describing the nature of the unsatisfactory performance and providing well-grounded reasons must be given to the employee, as it will not be possible to provide new reasons for termination of employment in court. Failure to comply with this procedure as well as improper grounds of termination of employment will result in the dismissal being deemed illegal and the employee being restored to his/her working position by the court. In addition, the employer will have to pay the salary for the time of forced unemployment and compensate the employee for moral damage and legal costs.
To summarize, the relevant court decisions on dismissal due to unsatisfactory results during the probation period reveal that courts are on the side of the dismissed employee if the formal procedure of dismissal is breached and/or the employer did not provide sufficient evidence to prove the employee’s unsatisfactory work results during the probation period.
Considering the above, and keeping in mind that a court dispute with an ex-employee generates material and administrative costs to the employer, it is worth considering a peaceful termination of employment with the unsuitable employee based on the mutual agreement of the parties.
By Svetlana Seregina, Head of Employment Practice, and Lenara Lyutvi, Associate, Peterka & Partners, Russia
