Explanation of establishment of probationary period in hiring by Ombudsman

Extracts for legal literacy News

The Human Rights Ombudsman explains the norms of the labour legislation of the Donetsk People’s Republic that regulate the procedure for establishing a probationary period for an employee in hiring.

According to Article 26 of the Labour Code of Ukraine (as amended in the territory of the Donetsk People’s Republic), the employer has the right to establish a probationary period for the employee in hiring him (concluding an employee contract).

The probationary period is established in order to check the ascertaining an employee’s suitability for his/her present position. During the probationary period, workers are subject to labour legislation. The condition of the probation must be specified in the order on the employment.

The legislation provides for certain periods of probation. Thus, the probation period for employment cannot exceed three months, and in some cases, in agreement with the relevant elected body of the primary trade union organization, – six months. The probation period in hiring workers may not exceed one month (Article 27 of the Labour Code).

Labour legislation does not provide for the establishment of the probation period free of charge for an employee. That is, the work of an employee during the probationary period must be paid by the employer without fail.

When hiring an employee with the probation period, the business entity is obliged to conclude an employment contract with him/her, in accordance with Article 21 of the Labour Code.

Thus, the current labour legislation interprets an employment contract as an agreement between an employee and the owner of an enterprise, institution, organization (or his authorized body), an individual – entrepreneur, according to which the employee is obliged to perform the work specified in the agreement and to obey the internal workplace regulations. And the owner of an enterprise, institution, organization, an individual – entrepreneur undertakes to pay wages to the employee and provide the working conditions necessary for the performance of work, provided for by labour legislation, the collective agreement and the agreement of the parties.

The conclusion of an employment contract is formalized by an order of the owner or his authorized body on the employment of an employee. An employment contract is considered concluded even when the order was not issued, but the employee was actually admitted to work (Article 24 of the Labour Code).

For certain categories of persons, a probationary period when recruiting is not established. In particular, Article 26 of the Labour Code does not establish a probationary period for:

– persons under the age of eighteen;

– young workers after graduation from professional educational institutions;

– young specialists after graduation from higher educational institutions;

– persons transferred to the reserve from military or alternative (non-military) service;

– persons with disabilities sent to work in accordance with the recommendation of medical and social expertise.

Probation is also not established in the hiring process in another locality and when transferring to work at another enterprise, institution, organization, as well as in other cases, if this is provided for by law.

In case when the owner or his authorized body establishes the non-compliance of an employee with the position held, he/she has the right, guided by Articles 28, 40 of the Labour Code, during the probationary period, fire such an employee. Termination of an employment contract on these grounds may be appealed by the employee in the manner established for the consideration of labour disputes on the issues of dismissal.

The Ombudsman reminds that for violation of labour legislation, namely for admitting an employee to work without registration or proper registration of labour relations, in accordance with Article 229 of the DPR Law “On the tax system”.