Consideration of labor disputes on termination of an employment contract with an employee who has not passed the probation period
In order to verify the compliance of the employee's qualifications with the assigned work, when concluding an employment contract, a probation period condition may be established in it. Therefore, only if the employee does not meet the qualifications for the assigned job, the employer has the right, within the probation period, to notify the employee in writing about the negative result of the work and terminate the employment contract. A probation period can be established at the conclusion of an employment contract for any category of employees, including young professionals who have started work for the first time.; persons under the age of 18; and persons with disabilities. According to paragraphs 2, 3 of Article 36 of the Labor Code, the probation period is included in the employee's work experience and may not exceed three months. For heads of organizations and their deputies, chief accountants and their deputies, heads of branches and representative offices of organizations, the probation period may be extended to six months. An employee who has been hired on probation must comply with the rules of the labor code. The probation period is suspended for the period when the employee was actually absent from work, regardless of the reasons for the absence, with the exception of off-duty rest. In accordance with paragraphs 1, 2 of Article 37 of the Labor Code, if an employee's work results are negative during the probation period, the employer has the right to terminate the employment contract with him by notifying him in writing, indicating the reasons that served as the basis for termination of the employment contract.
Consideration of labor disputes on termination of an employment contract with an employee who has not passed the probation period
An unsatisfactory test result must be confirmed by objective data related only to its qualification. Consequently, no other circumstances can serve as a basis for termination of the employment contract on this basis. The day of delivery of the notification indicating the reasons that served as the basis for termination of the employment contract is the day when the order was issued and the employment contract was terminated. If the probation period has expired and neither party has notified the termination of the employment contract, the employee is considered to have completed the probation period. Example. Plaintiff B. He filed a lawsuit against the defendant, the Department of State Revenue for the city of Almaty, claiming that the minutes of the meeting of the disciplinary commission regarding the dismissal of the plaintiff from his post were unlawful, arguing that he was accepted on probation for the position of a leading investigator of the Economic Investigation Service of the Department of State Revenue for the city of Almaty. By order of the DGD, he was brought to disciplinary responsibility in the form of dismissal from his post. The recommendation of the DGD Disciplinary Commission served as the basis for the issuance of this order. It is indicated that at the time of his dismissal he was on probation, that is, the position was not approved in accordance with labor legislation and he was not subject to dismissal from his position. By the decision of the district court No. 2 of Almaly district of Almaty, the satisfaction of B.'s claims was denied in full. By a decision of the appellate judicial board for civil cases of the Almaty City Court, the decision of the district court No. 2 of the Almaly district of Almaty was canceled, with the adoption of a new decision on the satisfaction of the claim in the case. In satisfying the claims, the Court of appeal came to the following conclusion. By order of the DGD, the plaintiff was appointed to the above position with a probation period of 3 months. In accordance with paragraphs 1, 2, 3, 4 of Article 12 of the Law of the Republic of Kazakhstan "On Law Enforcement Service", a probation period of up to three months is established for persons entering law enforcement service for the first time with appointment to the appropriate position. According to the results of the border compliance control, the probation period can be extended up to three months. By order of the DGD, the probation period for B. was extended until the completion of the internal investigation. For improper performance of his official duties. By order of the DGD, he was brought to disciplinary responsibility in the form of dismissal from his post. The list of grounds for dismissal of employees is established by article 80 of the Law of the Republic of Kazakhstan "On Law Enforcement Service", it is exhaustive and is not subject to extended interpretation. At the same time, this list does not contain such grounds as improper performance of their official duties. At the time of the appeal to the court, the plaintiff was on probation, and therefore he could be dismissed only on the basis of "discovered unfitness for service during the probation period."
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