The employer decided to fire an employee on the grounds of ‘unsuitability for the position’ after the expiration of the probation period. In turn, the employee considers this decision to be biased and illegal, because no conditions for such dismissal were provided for in the employment contract. About the main aspects of dismissal on the basis of the employee's unsuitability with the position held in accordance with the Labor Code of Ukraine (hereinafter – Labor Code) read further.
Nuances of working under an employment contract
When concluding an employment contract, a probation period may be established for the employee in order to check the compliance with the assigned work. According to Art. 26 of the Labor Code, the probation condition must be specified in the order on hiring. During the probation period, the suitability of the employee for the job or position is assessed. The probation period cannot exceed three months, and six – in case of agreement with the trade union. The probation period for hiring employees cannot exceed one month. The days on which the employee actually have not perform duties are not included in the length of the probation period.
If the employer establishes that the employee is not suitable for the position one was hired for or the work one performs, the employer has the right to fire such an employee during the probation period, giving three days' written notice. Termination of the employment contract in such a case is carried out on the basis of item 11 of Art. 40 of the Criminal Code.
In the event that the employee is found to be unfit for the position held or the work performed due to insufficient qualifications or a state of health that prevents the continuation of the work assigned, as well as in the case of a refusal to grant access to state secrets or cancellation of access to state secrets, if the performance of the tasks entrusted require access to state secrets, outside the probation period it is possible on the basis of item 2 of Art. 40 of the Labor Code. In this case, the grounds for dismissal may become new circumstances that were absent at the time of the conclusion of the employment contract or the probation period.
Dismissal on these grounds may be appealed by the employee in accordance with the procedure established for consideration of labor disputes in matters of dismissal.
