Publication date: 17.05.2024
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The procedure for dismissal during the probationary period
The employment contract may be terminated by the employer in the event that the employee is found to be ineligible for the position he was hired for or the work performed during the probationary period - clause 11 of part one of Article 40 of the Labor Code of Ukraine (hereinafter - Labor Code).
According to Article 26 of the Labor Code, when concluding an employment contract, a test may be stipulated by the agreement of the parties in order to verify the employee's suitability for the work assigned to him. At the same time, the test condition must be specified in the order (order) on hiring.
When establishing a test is impractical
The legislator established a number of cases when establishing a probationary period is inappropriate or when the benefit cannot be applied to certain categories of employees. Such cases are provided for in the third part of Article 26 of the Labor Code.
Setting up a test is possible only with mutual consent. As emphasized in the letter of the Ministry of Social Policy dated April 4, 2012 No. 54/06/187-12 "Regarding the dismissal of an employee who did not pass the test" (hereinafter - Letter No. 54/06/187-12), unilateral establishment by the owner of the test condition is inadmissible .
Probationary period for civil servants
A special procedure for the probationary period is provided for civil servants. Thus, in accordance with the second part of Article 35 of the Law of Ukraine dated December 10, 2015 No. 889-VIII "On Civil Service" (hereinafter - Law No. 889), when appointing a person to a civil service position for the first time, the establishment of a test is mandatory.According to part ten of the Law of Ukraine dated June 7, 2001 No. 2493-III "On Service in Local Self-Government Bodies", part two of Article 35 of Law No. 889 applies to employees of local self-government bodies.
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Total probationary period
The Supreme Court, while considering case No. 490/12203/16-ts, indicates that the total probationary period upon hiring an employee, established by Article 27 of the Labor Code of Ukraine (hereinafter - the Labor Code), except in certain cases, cannot exceed three months .
At the same time, the current labor legislation does not prohibit or limit the extension of the probationary period after the employee has been hired, which gives the employer the right to continue the probationary period within the limits of the period defined by Article 27 of the Labor Code - the decision of the Supreme Court of October 7, 2020 in case No. 490/12203/16 -ts.
According to Article 28 of the Labor Code, when the probationary period has ended and the employee continues to work, he is considered to have passed trial, and the subsequent termination of the employment contract is allowed only on general grounds.
Establishment of non-compliance during the probationary period
Ruling on case No. 755/12037/17, the Supreme Court pointed out that the grounds for dismissal based on the results of the trial can only be the employee's lack of suitability for the position for which he was hired.
The term "inconsistency" means that a violation of labor discipline cannot be the reason for dismissal. For such violations, the employee may be dismissed on the basis of the relevant articles of the Labor Code, and not on the basis of the results of the test - the decision of the Supreme Court of March 16, 2020 in case No. 755/12037/17.
Therefore, it can be assumed that there should be adequate evidence that would confirm the inadequacy of the employee for the position held. Thus, in the above case, the court established that the employee improperly performed the duties provided for in the job description.
In addition, the Supreme Court emphasizes that the termination of an employment contract with an employee during the probationary period cannot be recognized as being carried out at the initiative of the owner or an authority authorized by him, since the employee, upon hiring, consenting to the probationary period, actually consents to the possibility termination of the employment contract with him if, during the probationary period, it is established that he is not suitable for the work for which he was hired - the decision of the Supreme Court of December 2, 2020 in case No. 554/120/20.Based on the above practice, it can be concluded that although a simplified dismissal procedure is established for dismissal due to failure to complete the probationary period, the employer is not exempt from the obligation to argue and prove the grounds for such dismissal.
Dismissal due to failure to complete the probationary period
In Letter No. 54/06/187-12, the Ministry of Social Policy emphasized that dismissal based on the results of the test is issued by order of the employer. At the same time, the order and the work book refer to Article 28 of the Labor Code, and the reason for dismissal is formulated as "according to the results of the test."
It follows from the practice of the Supreme Court that dismissal can be justified only by non-compliance. This was also confirmed during the resolution of case No. 490/12203/16-ts, where during the probationary period, the employee was found to be ineligible for the position, which was manifested in his inefficient management of the enterprise. The Supreme Court established that this is a proper basis for dismissal in accordance with Article 28 of the Labor Code — Supreme Court ruling dated October 7, 2020 in case No. 490/12203/16-ts.
It should be borne in mind that evidence of the employee's ineligibility for the position should be indicated in the dismissal order, as they argue for the employee's dismissal itself.
One of the differences between dismissal in accordance with Article 28 of the Labor Code and dismissal due to the employee's incompatibility with the position held or the work performed (clause 2, part 1 of Article40 of the Labor Code), unlike the dismissal on the basis of paragraph 2 of the first part of Article 40 of the Labor Code, in the case of dismissal due to failure to complete the probationary period, severance pay is not paid and the employer is not obliged to offer the employee another job.
