• How to dismiss employees during the probationary period in case of their failure to perform duties?
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How to dismiss employees during the probationary period in case of their failure to perform duties?

24 May 2022


In practice, employers often face the problem of how to dismiss an employee who didn't go through the probationary period. However, when the question arises as to whether such an employee has been acquainted with the job description, a positive answer does not always follow.

You'll agree that in order to prove that an employee has not performed his/her job responsibilities, he/she must first be familiar with / clearly understand them.

 

Below are tips offered by BDO in Ukraine's payroll and personnel administration experts for employers to easily justify the dismissal of an employee based on the results of the probationary period. Thanks to these tips, employers can "insure" themselves as follows:

  1. Make the employee clearly acquainted with his / her job responsibilities.
    Prepare job description for the position to be held by the employee, familiarize the employee with it, against signature. Provide the employee with a copy of the job description and keep the original in his/her personal file.
     
  2. Make a plan for the probationary period.
    Indicate in the plan a list of assignments and tasks to be performed by the employee during the probationary period, indicate the deadlines for their implementation and the results expected from the employee. This plan will further be the basis for verification for a person who monitors and evaluates the probationary period (immediate supervisor). To do this, one copy of the probation plan is provided to the employee and the other - to the employer.
     
  3. Make a report or a regular internal memo with the results of the probationary period.
    Note that the current control of the employee's performance of his/her duties and tasks provided for in the job description and plan is necessary during the entire probationary period. The immediate supervisor needs to record the results of the employee's execution of specific assignments and tasks defined by the plan. In case of any remarks, non-fulfillment or incomplete fulfillment of tasks or job responsibilities, the immediate supervisor should write an internal memo to the director, indicate the date and sign. In the internal memo, it is necessary to clearly and in detail write down all the shortcomings in the employee's work, for example, non-fulfillment of tasks, etc.

 

Our advice is that before making a decision on dismissal, we consider it necessary to ask the employee to provide a written explanation of the reason for non-performance or late performance of the task. Particularly during martial law, there may be a situation when an employee was not able to complete tasks on time for various valid reasons (was in a shelter during bombing, there was no power supply, the Internet was down, etc.).

However, if, having considered the employee's reason, the employer recognizes the employee's reasons as viable, the employee should not be fired.

If the reasons were not viable and the results of the test were unsatisfactory and the employee was not up to the job, the employer has the right to dismiss such an employee, notifying him/her in writing within three working days.

Therefore, if on the basis of the above documents it was clear that such an employee is not suitable for the employer and it was decided to say farewell to him/her, it would be necessary to issue an order for dismissal based on the results of the probation. The basis for dismissal will be paragraph 11 of Article 40 of the Labor Code of Ukraine: "dismissal in connection with the establishment of the employee's incompatibility to the position for which he/she was hired or performed work during the probationary period."

As this is a type of dismissal at the initiative of the employer, dismissal of such an employee during illness or leave is prohibited by law.

The employee must be acquainted with the order against signature. If the employee refuses to sign, it is necessary to draw up an appropriate act of refusal. A copy of the order for dismissal is issued to the employee in accordance with Article 47 of the Labor Code of Ukraine. At the request of the employee, an appropriate record of dismissal must be made in the employee's employment record book.

 

To sum up, in order to avoid further controversial situations, the employer should document all the facts and details that indicate the employee's non-compliance with the proposed job during the probationary period.

Such documents may be:

  • internal memos of the immediate supervisor of the probationary employee, which provide facts and details of non-performance or poor or untimely performance of assigned tasks, etc.
  • written explanations of the employee about the reasons for non-performance or late performance of the tasks assigned to him/her, indicating the reasons and circumstances that prevented the performance.

Analyzing the existing case law on dismissal during the probationary period, it can be concluded that the courts are on the side of both the employer and the employee, depending on the reasons and arguments for dismissal.

 

The main conditions considered by the courts in considering such cases are as follows:

  • establishment by the owner or its authorized body of inconsistency of the employee with job position/work performed for which he/she was hired;
  • written warning of the employee about dismissal in 3 days (state officials - in 7 days);
  • dismissal is carried out during the probationary period.

 

Based on court decisions, the following are the main mistakes that employers should not make when dismissing an employee during the probationary period:

  1. The probationary period is not specified in the order or employment contract.
  2. Employees are dismissed when the probationary period has expired.
  3. Sick days or holidays are not taken into account before the probationary period.
  4. Complaints about the work of the employee are not recorded in writing.
  5. The employee is dismissed under paragraph 11 of Art. 40 of the Labor Code of Ukraine for violation of labor discipline, which cannot be done.
  6. There are no timely written dismissal notes.
  7. Dismissal notes do not contain clear grounds for incompatibility with the position; they are not specified, but general; no reasons are given. It is in the employer's interest to indicate the criteria it was guided by and the specific shortcomings that the employee made.