New Probationary Period Rules Became Effective

On June 12, 2016 the Law of Ukraine1 which introduces new probationary period rules became effective. This legislative act amends Articles 26-28 and 40 of the Labour Code providing for more detailed regulation of probationary periods, including the extended list of employees’ categories protected from the probationary period, rules for the probationary period calculation, and special rules for dismissal during the probationary period:

  • persons who were elected for their positions;
  • persons who entered and won a competition for the position;
  • persons who completed an internship (for public service);
  • pregnant women;
  • single mothers who have a child under 14 years old or a disabled child;
  • persons employed under a fixed-term employment agreement with less than a 12-month term;
  • persons employed for provisional or seasonal works; and
  • internally displaced persons.

 

 
IMPACT: Employers who set the probationary period for newcomers RISK: Establishing the probationary period for the protected category will constitute a labour rights violation and block the dismissal under Article 40 (11) of the Labour Code (for probationary period results) RECOMMENDATIONS: To ensure human resources comply with the extended list of protected categories
 

Secondly, the Law establishes clear rules of the probationary period calculation. Unlike previously, employers will not need to adopt internal orders shifting the probationary period in case the employee on a probationary period does not actually perform work (sick leave, absence at work, etc.). Instead, the Law stipulates that the days of the employee’s absence (with no regard to the reason of absence) will be automatically excluded from the probationary period by virtue of law. Hence, there will be no need to extent the probation term by adopting internal orders. 
 

IMPACT: Employers who set the probationary period for newcomers RISK: Undue accounting of days when the employee on a probationary period does not actually perform work RECOMMENDATIONS: To ensure human resources duly account and record the days the employees on probationary periods are absent at work
 


Thirdly, the adopted Law also introduces an obligation to serve employees with a three-day prior notice in writing, if they are to be dismissed for poor performance during the probationary period. The previous rules, which had been applicable before the Law came into force, did not provide for such notice to be served before the dismissal.

This new requirement means that employers should not wait with the dismissal until last days of the probationary period, since they may fail to comply with the notification period. Provided the employer wants to dismiss the employee on probation, it shall consider the necessity of the due written notification.

The legal consequences of non-compliance with the notification period (e.g. dismissal on the day of notification) have not been prescribed yet, since they are to be determined by the relevant jurisprudence. We may only assume that courts may follow the approach of redundancy cases, where they merely shift the actual dismissal date to the due date, as if the employee was notified in time (Clause 19 of  the the Supreme Court Plenum’s Resolution2). On top of that, the very notice must be served to the employee in any case.

 

IMPACT:
Employers who set the probationary period for newcomers
RISK: Failure to serve the dismissed employee with a three-day prior notice in writing may block the dismissal under Article 40 (11) of the Labour Code RECOMMENDATIONS: To ensure human resources follow new rules and serve the dismissed employees with a three-day prior notice in writing 


Finally, the Law establishes the new ground for the dismissal – “matching of the employee’s unsuitability for the occupied position or performed work during the probationary period”. This ground is now prescribed by Article 40 (11) of the Labour Code and employers will have to make a respective reference when filling in the employee’s employment record book.
 
Article 40 of the Labour Code provides a list of the grounds for the forced dismissal under the employer’s initiative. These grounds may not be invoked during the employee’s sick leave. Therefore, employers will not be able to dismiss employees who are on a probationary period during their sick leaves, notwithstanding that the earlier jurisprudence allowed this, since such dismissals were not treated as conducted “at the employer’s initiative”.
 

IMPACT:
Employers who set the probationary period for newcomers
RISK: Employee’s dismissal under Article 40 (11) of the Labour Code during the sick leave may be challenged in court and found illegal with the employee’s reinstatement RECOMMENDATIONS: To ensure that human resources take the new rules into account when filling in the employment record books and that employees on probation are not dismissed during their sick leaves


Lastly, the new rules introduced by the adopted Law are very similar to those prescribed by the current wording of  the Draft Labour Code3 (except for certain protected categories additionally listed in the Law). Therefore, the new business processes that will be built to comply with the Law will remain actual after the adoption of the highly anticipated Labour Code.
 


1 - Law of Ukraine No. 1367-VIII “On Amending the Labour Code of Ukraine (Regarding Probation)” dated May 17, 2016

2 - Resolution No. 9 of the Plenum of the Supreme Court of Ukraine “On Practice of Labour Cases’ Consideration” dated November 06, 1992

3 - Draft Labour Code of Ukraine No. 1658, registered on December 27, 2014 (revised on May 20, 2015)

 

 

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Oksana Voynarovska
partner
voynarovska@vkp.ua
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Oleksandr Melnyk
junior associate
melnyk@vkp.ua