Dismissal for an immoral act. Immoral offense

Only employees performing educational functions (teachers, professors, mentors, educators, nannies and other persons engaged in educational activities) can be dismissed for committing an immoral offense. Employees performing only technical and auxiliary duties (watchman, driver, supply manager, accountant) cannot be dismissed on this basis (clause 46 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

The concept of “immoral offense” is not defined in law. Therefore, the employer independently decides which offense should be considered immoral. In practice, petty hooliganism, the use of alcoholic drinks V public place, involvement of minors, fights, ill-treatment with animals, drug use, foul language in the presence of minors, etc.

For dismissal on this basis, it does not matter where the offense was committed (at work or at home) (clause 46 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2) and whether children witnessed its commission.

If an immoral offense was committed at work while performing a job function, then when dismissing you should be guided by general rules application of disciplinary action.

If the offense bears the characteristics of a crime, then the employer has the right to contact law enforcement agencies, but his decision will be sufficient for dismissal.

Important! The application of punishment in the form of dismissal in this case is only the right of the employer. Therefore, he may limit himself to a reprimand or remark, or not apply a penalty to the employee at all.

Situation from practice

What measures should the school administration take to discipline a teacher for using obscene language?

The administration may apply disciplinary measures to the employee, for example in the form of a reprimand or dismissal, subject to compliance with the procedure established by law.

In accordance with paragraph 47 of the Resolution of the Plenum of the Armed Forces of the Russian Federation, if an immoral offense is committed by an employee at the place of work and in connection with the performance of his job duties, such an employee may be dismissed from work on the grounds provided for in paragraph 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, subject to compliance with the procedure for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. It should also be taken into account that, according to paragraph 2 of Art. 55 of the Law of the Russian Federation of July 10, 1992 N 3266-1 “On Education” disciplinary investigation of violations by a teaching employee educational institution standards of professional conduct and (or) the charter of a given institution can only be carried out upon a complaint received against it, submitted in writing. A copy of the complaint must be given to the teaching staff member. After receiving a complaint from parents, the school principal should create a commission to investigate the incident. The commission must demand explanations from the teacher and interview students whose parents wrote complaints. If the fact of using obscene language is confirmed, the employer will have the right to fire the teacher.

Registration of the fact of committing an immoral offense

There is no unified document that needs to be drawn up when it is discovered that an immoral offense has been committed. In practice, this fact is recorded in a report from the person who discovered it. If there are several witnesses, then a report should be drawn up. The report or act must reflect:

Last name, first name, patronymic of the employee who discovered the fact of the offense;

The circumstances under which the offense was committed;

Date and time of commission.

If employees of the organization received information about an illegal act directly from law enforcement agencies or from third parties, then the preparation of a memorandum is not necessary.

Based on specified documents the employer initiates an internal investigation, the task of which is to identify the culprit.

Some immoral offenses may have the characteristics of a criminal offense or administrative offense, the guilt of the employee for which is determined by the court.

The commission of a criminal offense may be considered sufficient grounds for imposing a penalty in the form of dismissal. Copies of the verdict or resolution on an administrative offense (if available) are evidence of the fact that the employee committed an immoral offense.

Creation of a commission to investigate the commission of an immoral offense

A commission to investigate an employee’s immoral offense should be created regardless of where the immoral offense was committed.

An order is issued on the formation of the commission, which indicates the names and positions of the employees included in its composition, the purpose and date of creation of the commission, the period of its validity (it may not be limited to a specific case), as well as the powers of the commission.

The commission to investigate the commission of an immoral offense has the following tasks:

Establishing the circumstances of the commission of an immoral offense, including the time, place and method of its commission;

Identification of persons directly guilty of committing an immoral offense;

Identification of the reasons for committing an offense;

Determining the possible punishment for a person who has committed an immoral offense.

The commission has the right to demand explanations from employees suspected of committing misconduct, and if they refuse to provide explanations, draw up an appropriate act. If such explanations are received during the investigation, then it is no longer necessary to demand them again when imposing a penalty.

The order to create the commission must be familiarized with signature to all employees included in it. It is not necessary to introduce it to the employee who is being investigated, since the legislation does not contain such a requirement.

Registration of the decision of the commission to investigate the commission of an immoral offense

The results of the commission's work are reflected in the corresponding decision (act). Unified form of this document is not approved, so the employer can develop it independently. The act must reflect:

The names and positions of all commission members;

Date, exact time and place of drawing up the act;

The basis and timing of the investigation;

List of activities carried out (briefly);

Time, place and circumstances of the commission of the offense;

Reasons and conditions for committing an offense;

Last names, first names and patronymics of the guilty persons and the degree of their guilt;

Proposed penalties (taking into account personal and business qualities culprits) or further actions.

If the immoral offense was not committed at work, then it is indicated how the employer learned about it (a complaint from neighbors, a police complaint, etc.).

If an employee commits a crime or an administrative offense, a sentence or order of a court, as well as another body, to apply administrative punishment are evidence of an immoral offense and the results of their study by the commission are reflected in the decision.

In addition, the act may contain other information.

The decision is signed by all members of the commission. The employee guilty of committing an immoral offense must be familiarized with it against signature. If he refuses or evades familiarization, a corresponding act is drawn up.

The commission’s decision is accompanied by all collected evidence of the commission of an immoral offense (memos, written testimony, acts, complaints from victims and other documents, including photographs, videos, printed materials(if the case became public)).

Obtaining an explanation from an employee who has committed an immoral offense

Before issuing an order to apply a disciplinary sanction in connection with the commission of an immoral offense, a written explanation must be required from the employee (Article 193 of the Labor Code of the Russian Federation). The Labor Code of the Russian Federation does not specify in what form such an explanation must be requested. Therefore, if the employee is ready to draw up an explanatory note, a written request need not be issued. If the situation is clearly of a conflict nature, then it is better to formalize this requirement in writing and familiarize the employee with it against signature. If he refuses to sign, a corresponding act must be drawn up.

If, after two working days from the date of presentation of the demand, the employee has not provided an explanation, then the corresponding act is drawn up (Article 193 of the Labor Code of the Russian Federation). If there is such an act and a document indicating that an explanation was requested from the employee, the issuance of an order (instruction) on termination (termination) employment contract possible without explanatory note(Article 193 of the Labor Code of the Russian Federation).

Drawing up an order to apply a disciplinary sanction in the form of dismissal and an order (instruction) to terminate (terminate) an employment contract with an employee for committing an immoral offense

Dismissal for committing an immoral offense is one of the forms of disciplinary action (Part 3 of Article 192 of the Labor Code of the Russian Federation). In accordance with Art. 193 of the Labor Code of the Russian Federation, the application of a penalty must be formalized by order (instruction) of the employer. Thus, before issuing an order to dismiss an employee, it is necessary to draw up an order to impose a penalty on him.

How to correctly draw up an order to impose penalties on an employee? For more information about this, see paragraph 1 of this material.

There is no unified form for such a document, so the organization develops it independently. The order must include the following information:

Last name, first name, patronymic of the employee;

Employee position;

The structural unit where the employee works;

An offense committed by an employee, with reference to violated clauses of the contract or job description and for documents confirming this violation;

The circumstances of the commission of the offense, the degree of its severity and the guilt of the employee.

As the basis for issuing an order, the details of the act, memorandum or other document recording the misconduct, the employee’s explanatory note or the act of refusal to provide explanations are indicated.

After issuing an order to impose a penalty in the form of dismissal and familiarizing the employee with it, it is necessary to draw up an order (instruction) to terminate the employment contract (unified form N T-8, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1). It must indicate that labor relations terminated in accordance with clause 8, part 1, art. 81 of the Labor Code of the Russian Federation in connection with the commission of an immoral offense. The “Grounds” column should reflect the details of the order to apply a disciplinary sanction.

The order must be familiarized to the employee against signature. If he refuses to sign, an entry is made in the order: “I have read the order, but refused to sign” or “It is impossible to familiarize it with signature” (Part 2 of Article 84.1 of the Labor Code of the Russian Federation).

Terms of dismissal of an employee for committing an immoral offense

If an immoral offense is committed at work, then the employee can be dismissed no later than one month from the moment of discovery this fact, but no later than six months from the date of the offense. The day of discovery is considered the day when the employee’s immediate supervisor became aware of the commission of an immoral offense.

If an immoral offense was not committed at the place of work and not while performing job duties, then the dismissal of an employee is not a disciplinary measure, the application of which is limited by time in accordance with Art. 193 Labor Code of the Russian Federation. In this regard, dismissal can be made at any time, but no later than one year from the moment the misconduct was discovered (part 5 of article 81 of the Labor Code of the Russian Federation and paragraph 47 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

Registration of a work book upon dismissal for committing an immoral offense

Information about dismissal is entered into the work book, and it is indicated that the employee is dismissed for committing an immoral offense on the grounds of clause 8, part 1, art. 81 Labor Code of the Russian Federation. Upon receipt work book he must sign in the personal card and in the book for recording the movement of work books and inserts in them (clause 41 of the Decree of the Government of the Russian Federation of April 16, 2003 N 225 “On work books”).

Registration of a personal card upon dismissal for committing an immoral offense

A record of dismissal for committing an immoral offense on the grounds of clause 8 of Part 1 of Art. 81 Labor Code of the Russian Federation. Upon receipt of the work book, the employee must sign the personal card (clause 41 of the Decree of the Government of the Russian Federation of April 16, 2003 N 225 “On work books”).

Payments that must be made to an employee upon dismissal for committing an immoral offense

When an employee is dismissed for committing an immoral offense, he must be paid wages for the period worked, compensation for unused vacation and other amounts due (bonuses, etc.). Payment is made on the day of dismissal, which is recognized as the last working day (Articles 84.1 and 140 of the Labor Code of the Russian Federation).

If the employee did not work on the day of dismissal, then these amounts must be paid no later than the next day after the dismissed person presents the corresponding demand (Article 140 of the Labor Code of the Russian Federation). However, the Labor Code of the Russian Federation does not establish the form of such treatment. This means that an oral statement from the employee is sufficient. In the event of a dispute about the amount of amounts due to an employee upon dismissal, on the day of dismissal or filing a corresponding demand, he must pay the undisputed amount (Article 140 of the Labor Code of the Russian Federation). This amount should be understood as the amount for which the employee has no claims.

If a dispute arises about the amounts to be paid (for example, about the amount of compensation for unused vacation or bonuses), these issues are resolved after termination of the employment contract in the manner prescribed for the consideration of an individual labor dispute (Chapter 60 of the Labor Code of the Russian Federation).

Immoral offense committed by a teacher

Performing certain jobs requires the employee not only to adhere to duties, but also to maintain a certain type of behavior both during work and at home. This applies to teaching staff who perform educational functions in relation to other people.

Considering that teaching staff should be role models, even the slightest deviation from the norm leaves an imprint on the entire institution where they work. Therefore, according to labor law, an employer can terminate the employment relationship with an employee who has committed an immoral offense early.

There is no clear legislative definition of what constitutes an immoral offense. At the same time, all actions that do not fit into generally accepted standards of behavior are considered immoral. modern man and can become the basis for bringing a citizen to criminal, administrative, or condemnation by civil society.

Typically the following are considered immoral acts:

1. Being in public places under the influence of alcohol or drugs.
2. Hooligan or criminal acts recorded by law enforcement agencies.
3. Behavior (at work or at home) that goes beyond the bounds of decency (excessive sexual freedom in actions and clothing, perverted sexual behavior, sexual harassment of one’s subordinates, obscene language in communication, unwillingness to adhere to elementary rules hygiene and others).
4. Participation in fights.
5. Facts of physical or psychological violence regarding students (strikes, beatings, coercion to various degrading actions that cause mental suffering to the young man).
6. Alcoholism, drug addiction.

The Labor Code provides for a provision allowing employers to terminate employment relationships with teaching staff who have committed an immoral offense. It is important to indicate that such an offense must be incompatible with the citizen’s future work.

You need to understand that an act can be considered immoral both in society as a whole and directly in a specific group. Before applying the latest rule, the employer must take into account that the moral framework in the educational institution must initially be established and communicated to all teachers under personal signature.

They should not deviate from generally accepted social behavior patterns. If these criteria are not met, the employee will be able to be reinstated in his previous position through the court and demand compensation for absenteeism that occurred through no fault of the employee, as well as compensation for moral damage.

Remember, the article on termination of employment due to an immoral act can only be applied to citizens performing educational functions and only if such an offense is incompatible with the further activities of a particular employee in this position.

Who can be fired

Who can be fired for immoral misconduct?

If you carefully read the legislative norms, as well as judicial practice and the explanations issued on its basis, then the category of persons who can be punished for immoral behavior includes only teaching staff. But even here, not all categories of employees perform an educational function.

Therefore, before applying clause 8 of the first part of Article 81 of the Labor Code of the Russian Federation, you should carefully familiarize yourself with the employee’s labor responsibilities, as well as the actions that he performed.

1. Teachers working in kindergartens.
2. School teachers, teachers in contact with students.
3. Masters performing industrial training functions.
4. Sports trainers, speech therapists, sports camp counselors.

It is necessary to understand that the determining factor in classifying a position as a pedagogical position is not its direct title, but the specific work performed according to the terms of the job description. For example, if a teacher who performs administrative and economic functions and does not have contact with students outside working hours caught in drunk, you cannot fire him for immoral behavior.

The process of dismissing an employee for immoral behavior must be accompanied by a comprehensive study of not only real (and documented) responsibilities, but also the severity of the offense committed. Especially if all this is discovered during non-working hours.

Do not forget that before applying the dismissal norm, the employer is obliged, if possible, to use other means of influence (warning, reduction of bonus payments, reprimand, demotion, transfer to another job). An exception is if the offense committed is incompatible with the possibility of continuing to work in a particular educational institution.

Remember, even if a citizen is a teaching employee and caught for immoral behavior, in order to apply the appropriate dismissal article to him as punishment, the employer must prove that he is performing an educational function in relation to other people, and that the offense committed is incompatible with the performance of further work.

Features and procedure for dismissal

Features of dismissal for immoral behavior

Perhaps, main feature legislative norm, which provides for dismissal for immoral behavior, lies in the absence of a clear link between such an offense and the place and time of its commission. This can happen at work and at home. People are often fired for immoral offenses committed in the past, if they were initially hidden from the administration and were revealed after some time.

To apply the standard of dismissal for moral misconduct, the employer must collect evidence confirming that such misconduct actually occurred. The list of evidentiary documents includes:

• statements from parents, reports from work colleagues, explanatory notes from witnesses to incidents;
• protocols and decisions on administrative liability, letters from law enforcement and preventive authorities;
• copies of decisions or court orders.

Remember, when dismissing employees, you should not be guided by speculation, rumors, or unverified information from the global network (today you can easily edit almost any photo or video). During further proceedings in court, the employee will be reinstated, but the administration’s reputation may be seriously damaged.

If such an offense is recorded in time, the employer is obliged to fully understand what actually happened and how it all affects the employee’s ability to perform his teaching functions. It must be taken into account that dismissal from work is an extreme measure, the use of which is possible only if it is proven that the action taken is incompatible with the citizen’s further work, or has occurred systematically before, for which disciplinary measures have already been applied to the employee.

Reviews of immoral behavior must be carried out in the presence of the employee who committed it. A mandatory document that the employer must request is a written explanation from the employee himself.

If the offending employee refuses to write an explanation, it is necessary to draw up an act to record all this. It is advisable in such an act to briefly outline the essence of the conversation with the offender. The act is signed by at least 3 people. It is advisable that they have no interest in the outcome of the proceedings.

Dismissal procedure

Procedure for dismissal for immoral behavior

To carry out the procedure for dismissing an employee who has committed an immoral offense legally, it is necessary to include the following steps.

We record the fact of an immoral offense. Considering that dismissal for this reason can be applied for actions both at work and at home, a single form of confirmation has not been established. Usually this official document competent authority (police, court, prosecutor's office), and maybe from conscientious citizens (for example, roommates).

If the incident is recorded at work, it must be documented in writing. This is done in the form of a note, an act signed by several employees, or statements from parents.

Explanation from the offending employee. Considering that people can often spread outright false information due to personal hostility towards each other, the employer is obliged to consider the arguments of the other side.

And this is done exclusively in writing (so that there is documentary evidence). Further actions of the administration often depend on the information received from the employee who committed the offense.

An internal investigation is underway. To ensure the veracity of the evidence, the employer is obliged to conduct an internal verification of the facts presented by the parties. Usually a special commission is created for this purpose.

It is created by order of the employer, endowed with certain powers, and the terms and procedure for its work are established. At the end of the commission’s work, a report is drawn up, which sets out the facts obtained during the investigation, and also proposes measures of influence regarding the violator. The violator gets acquainted with the investigation report against a personal signature.

A decision on punishment is made. Based on the findings of the commission, as well as available documents, the employer must decide whether to hold the employee accountable. This could be disciplinary action or dismissal from work. Issued by order of the enterprise. A corresponding entry is made in the work book. On the day of dismissal, a full settlement is made with the employee.

It is important to note that depending on the documents received for consideration by the employer, the stages may be shortened or increased. For example, if this is a court decision that has gained legal force, it in itself is evidence of a committed offense and does not require further re-verification.

At the same time, if you just received a statement from a conscientious neighbor, it is advisable to file an additional request with the police at the employee’s place of residence in order to conduct an additional official check. And only after receiving a positive response from law enforcement agencies can you move on to the next stage.

Remember, quite often negligent employees are reinstated through the courts due to violation of the procedure for registering an immoral offense. Therefore, so that formalities do not interfere with getting rid of unworthy teachers, always follow the procedure and the timing of its registration.

If an employee has committed a violation of labor discipline, but it is problematic to prove the immorality of such an offense, it is advisable to bring him to disciplinary liability on a general basis. After all, systematic violation of labor discipline can also lead to dismissal in the future.

How does an appeal take place in court?

Appeal against illegal dismissal

Often an employee dismissed “under an article” does not agree with this decision of the employer and goes to court to cancel the dismissal order and reinstate him in his previous position. It is important to remember that the responsibility to prove that you are right lies not with the employer, but not with the employee.

Initially, the court is on the side of the citizen. And the slightest deviation in the dismissal procedure will be the reason to make a decision in favor of the dismissed employee.

In case of dismissal in court special attention focuses on the following points:

1. Was the dismissed employee directly related to educational work, what documents recorded this, how was it communicated to the employee.
2. What was the fact of the immoral offense committed by the employee, how did it affect his further work, why it is impossible for such an employee to continue working in this establishment.
3. How was the severity of the offense determined, why the decision was made to dismiss the employee, whether other disciplinary measures were previously applied to him.
4. Were the procedure and deadlines for imposing penalties followed, did the employer consider the misconduct from all sides, and how did it approach the study of the evidence base that served as the basis for the decision to dismiss.
5. Was the fact that the employee was on sick leave or on vacation taken into account on the date of his dismissal?
6. Was the employee promptly familiarized with the memos regarding the immoral offense, acts, protocols of official proceedings and consideration, and the dismissal order.
7. Whether the payment for dismissal was made in a timely manner, whether the entry made in the work book complies with the current labor legislation.

Therefore, to prove the validity decision taken the employer will need to provide the court with the following documents (certified copies or extracts):

• order on the employment of an employee;
• an order confirming the fact of dismissal;
• a memorandum, act, statement, written appeal from an authorized person confirming the fact of an immoral offense;
• personal written explanation of the employee;
• documents confirming the conduct of an internal audit (proceeding). As a rule, this is an act of official inspection, or a protocol of official consideration of an immoral offense;
• employee job description with his personal signature;
• other documents on the basis of which decisions were made.

Remember, the responsibility to prove your case lies entirely with the employer. Therefore, you should initially check the presence of all supporting documents, signatures of the culprit, as well as their compliance with the procedure established by law.

For more information about disciplinary sanctions in the Labor Code, watch this video:

Form for receiving a question, write yours

Dismiss an employee for an immoral offense under clause 8, part 1, art. 81 of the Labor Code of the Russian Federation is not at all easy. Difficulties arise not only with the qualification of an employee’s unlawful actions as an immoral offense, but also with the fact that not every employee can be fired on this basis. We tell you how to properly formalize such a dismissal.

Rules for terminating an employment contract on the basis of “immoral misconduct”

Terminate the employment contract with the employee under clause 8, part 1, art. 81 of the Labor Code of the Russian Federation - in connection with the commission of an immoral offense by an employee that is incompatible with the continuation of work in the position held, it is possible only if certain conditions are met. Namely, only an employee performing educational functions can be fired for such actions. In other cases, you must either choose another basis for terminating the employment contract, or limit yourself to a milder disciplinary sanction. And if there are no grounds for collection, take other measures - have a heart-to-heart talk with the offender or contact the police.

Dismissal on the grounds of “immoral misconduct” is also possible in a situation where an immoral offense was committed at the place of work in connection with the performance of job duties and outside the place of work or at the place of work, but not in connection with the performance of job duties. Moreover, in the second case, the culprit can also be fired on this basis, but the procedure for terminating the employment contract will be slightly different.

For example, the teacher was caught in assault - he hit the students on the hands several times with a ruler. These actions, of course, can be regarded as an immoral offense incompatible with the continuation of work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation). However, in this case it is better to use the special grounds for dismissal provided for in subsection. 2 clause 4 art. 56 of the Law of July 10, 1992 No. 3266-1 “On Education” (hereinafter referred to as the Law on Education) 1. It sounds like this: “The use, including one-time use, of educational methods associated with physical and (or) mental violence against the personality of the student or pupil.”

1 The document becomes invalid on September 1, 2013 due to the adoption of the Federal Law of December 29, 2012 No. 273-FZ “On Education in Russian Federation».

Pay attention!

An immoral offense is an action that violates the norms of morality and morality and contradicts generally accepted ideas about reasonable and worthy behavior.

Immoral offenses include both illegal actions (theft, violence, insult, hooliganism) and those simply condemned by society (for example, excessive consumption of alcohol, rudeness towards others, unworthy behavior in everyday life).

Workers performing educational functions can be divided into two categories.

Firstly, these are pedagogical workers - teachers of primary, secondary and higher educational institutions (including private schools), institutions of additional education, as well as teachers and nannies in kindergartens.

Secondly, other employees whose job function includes education:

Masters of industrial training;

Sports section coaches;

Heads of creative clubs and studios;

As well as employees who are involved in educational or educational work in addition to their main activities (for example, heads of internal affairs bodies and their deputies for educational work - order of the Ministry of Internal Affairs of Russia dated 01.02.2007 No. 120 “On the comprehensive reform of the system of educational work in internal affairs bodies”).

Tutors and nannies working for private individuals also perform an educational function as defined by their employment contract and job description.

Employees who, although they work in children's institutions, do not perform educational functions, cannot be fired for committing an immoral offense.

For example, a school cleaner rudely yelled at a fifth-grader and pushed him for leaving a footprint in the hallway that she had just cleaned, causing the student to fall and hurt his leg. The employee was dismissed for committing an immoral offense incompatible with continued work, but the court reinstated her in her previous position. The judge explained to the employer that the cleaner, while working at the school, did not perform educational functions, which means that her dismissal on this basis is illegal.

When dismissing an employee under clause 8, part 1, art. 81 of the Labor Code of the Russian Federation, the fact of a teacher’s misconduct must be confirmed with written evidence. If the teacher’s supervisor or colleagues witnessed it, they can draw up a report about it. In other cases, a written complaint from the student or his parents is required, indicating the specific circumstances of the incident and attaching supporting documents (for example, a medical report). Having received such a complaint, it is necessary to assemble a commission and conduct a disciplinary investigation (Article 55 of the Education Law). At the end of the investigation, the head of the organization makes a decision to dismiss the employee or other measures that need to be applied to him.

Important!

To dismiss an employee for an immoral offense not related to the performance of work duties, the employer must have sufficient evidence, for example, a copy of the police report, a court order imposing an administrative penalty, and testimony of witnesses.

The question of the severity of an immoral offense is a very complex problem that requires a comprehensive assessment of the circumstances of the incident, the identity of the perpetrator and other factors. Therefore, it is advisable to submit it for discussion to a specially created commission and formalize the commission’s recommendations in a protocol. Based on this document, the head of the organization will choose a disciplinary measure.

Procedural points

Dismissal under clause 8, part 1, art. 81 of the Labor Code of the Russian Federation refers to a type of disciplinary sanctions, therefore it is necessary to follow the procedure for applying penalties in accordance with Art. 192 and 193 of the Labor Code of the Russian Federation.

Disciplinary action is applied no later than a month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than six months from the date of commission of the offense. IN specified deadlines The time of proceedings in a criminal case is not included (parts 3 and 4 of Article 193 of the Labor Code of the Russian Federation).

It must be borne in mind that if the incident did not occur at the place of work (for example, a teacher was caught abusing his own children or in a fight with a neighbor), dismissal will not be considered a disciplinary sanction (Part 2 of Article 192 of the Labor Code of the Russian Federation). In this case, termination of the employment contract is formalized under clause 8, part 1, art. 81 of the Labor Code of the Russian Federation without the procedure for imposing a disciplinary sanction. An employment contract with such an employee can be terminated no later than one year from the day the employer learned of the misconduct (Part 5 of Article 81 of the Labor Code of the Russian Federation).

In this article we're talking about about dismissal for a disciplinary offense (Part 2 of Article 192 of the Labor Code of the Russian Federation). Let us present the necessary algorithm.

1. We collect documents confirming the fact that the employee committed guilty actions (official reports, reports, acts, written explanations of witnesses, complaints from victims, medical reports). Sample memo.

2. We require written explanations from the employee about the reasons and motives for what happened (Article 193 of the Labor Code of the Russian Federation). Sample explanatory note from an employee. If after two working days the employee has not provided an explanation, we draw up an appropriate act in the presence of witnesses (Article 247 of the Labor Code of the Russian Federation). Failure by an employee to provide explanations is not an obstacle to applying a disciplinary sanction (Part 2 of Article 193 of the Labor Code of the Russian Federation).

3. We issue an order (instruction) to apply a disciplinary measure in the form of arbitrary dismissal. We bring it to the attention of the employee against signature within three working days from the date of its publication. If the employee refuses to familiarize himself with the document against signature, we draw up a corresponding act about this fact (paragraph 6 of Article 193 of the Labor Code of the Russian Federation). Sample order to apply a disciplinary sanction.

4. We issue an order of dismissal in form No. T-8 (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). We allow the employee to familiarize himself with this order against signature within three working days from the date of publication. If the employee refuses to familiarize himself with the order, we draw up a corresponding report. Sample dismissal order.

5. We make an entry in the work book about dismissal in connection with the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation), and the employee’s personal card (form No. T- 2). Sample entry in a work book.

6. We issue the work book to the employee on the last day of work (Article 84.1 of the Labor Code of the Russian Federation).

7. We make a full settlement with the employee (Article 84.1, 140 of the Labor Code of the Russian Federation).

What else you need to remember

Termination of an employment contract with an employee under clause 8, part 1, art. 81 of the Labor Code of the Russian Federation is carried out at the initiative of the employer. Therefore, an employee cannot be dismissed during his illness or vacation (Article 81

"Labor Law", 2009, N 6

Some amendments should be made to labor legislation to establish a uniform procedure for dismissing workers for immoral offenses.

The labor activity of employees related to the implementation of their educational function has a special legal and social significance. The work of this category of workers imposes on them responsibility for their own behavior, because their mistakes often cause damage not only to the employer, but also to other citizens, usually minors.

This circumstance is reflected in the current Labor Code of the Russian Federation, which, among other things, provides an additional basis for termination, at the initiative of the employer, of labor relations with an employee performing an educational function due to his official and professional behavior.

Clause 8, Part 1, Art. 81 of the Labor Code of the Russian Federation provides that an employee whose work activity involves educating citizens may be dismissed by the employer in connection with the commission of an immoral offense incompatible with his continuation of this work. Clauses 1 and 2 of Art. correspond to this norm. 336 of the Code, which provide as grounds for termination of an employment contract with a teacher a repeated gross violation of the charter of an educational institution within one year, as well as the use, including one-time use, of educational methods associated with physical or mental violence against the individual student or pupil.

The main feature of the above grounds for dismissal is that they are largely evaluative in nature. Approaches to the interpretation of immorality, the severity of the violation and the possibility of continuing work can be very different, which entails, as a consequence, different conclusions of the courts when considering disputes regarding claims for reinstatement of citizens dismissed in connection with the commission of the listed actions. Unfortunately, it can be stated that there is ambiguity judicial practice in this category of cases, which creates difficulties in applying the norms of labor legislation on the termination of employment contracts with employees carrying out educational activities in educational and other institutions of various levels. At the same time, the accumulated experience of law enforcement agencies allows us to highlight the main points that the employer should take into account when applying paragraph 8 of Part 1 of Art. 81 and paragraphs 1, 2 art. 336 of the Labor Code of the Russian Federation.

1. Subjects in relation to whom the application of clause 8, part 1, art. 81 Labor Code of the Russian Federation

First of all, it is necessary to focus on the fact that dismissal for committing an immoral offense is allowed only in relation to a limited range of subjects of labor relations, which is not subject to a broad interpretation. This category includes exclusively employees directly performing educational functions in the relevant organization. At the same time, the legislator does not establish any requirements for the employer, i.e. This can be not only an educational institution, but also any other enterprise that has employees who carry out educational functions in accordance with their job responsibilities.

The Supreme Court of the Russian Federation in the Resolution of the Plenum dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” indicated an approximate list of positions in respect of which the application of clause 8 of part 1 of art. 81 of the Labor Code of the Russian Federation. These include: teachers, teachers of educational institutions at various levels, masters of industrial training at enterprises, teachers of children's institutions, etc. At the same time, it has no legal significance; educational activities are carried out in relation to minors or persons who have reached the age of 18, for example in higher education establishments.

At the same time, the commission of an immoral offense by employees of educational and educational institutions, whose functional responsibilities do not include the direct implementation of educational activities, does not entail dismissal in accordance with paragraph 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation.

A typical example of this issue is the following legal dispute.

V. and K. filed a lawsuit against the secondary school for reinstatement in connection with their illegal dismissal for committing an immoral offence. According to the materials of the civil case, during the school sports day on April 28, 2003, physical education teacher K. asked the school’s deputy director for economic affairs, V., to bring a challenge cup, which was kept in a glass display case in the director’s office, to reward the winner of the running competition. V. refused to comply with K.’s request, explaining that the lock of the display case was jammed and opening it could break the key. In the presence of schoolchildren from grades 5 to 8 and their parents, K. and V. began to insult each other, a serious quarrel broke out between them, which turned into a fight. On the same day, outraged parents of schoolchildren submitted a written complaint to the school director against the actions of the physical education teacher and the school's deputy director for economic issues with a request to punish the perpetrators. The parent committee was tasked with monitoring the situation.

The school director requested written explanations from V. and K. about what happened, and on June 2, 2003 (at the end of academic year) an order was issued to dismiss the physical education teacher K. and the deputy director of the school for economic issues V. under clause 8 of part 1 of art. 81 of the Labor Code of the Russian Federation for committing an immoral offense. Having considered the case on the merits, the court found V.’s dismissal to be unfounded, since the job description of the deputy director of the school for economic issues did not provide for the direct implementation of educational functions and the employment contract with him could not be terminated on this basis. The court decided to reinstate V. at work with pay for the time he was forced to miss.

The court found the dismissal of physical education teacher K. to be quite justified, since the job description of a physical education teacher provides for the performance of educational functions, and made a decision to reject the claim for reinstatement and payment for the time of forced absence<1>.

<1>Commentary on judicial practice. Issue 10 / Ed. O. Abramova, M. Bocharnikova. M.: Legal. lit., 2004. P. 18.

Thus, when considering cases of this category, the most important evidence is the job description of the dismissed employee, which contains information about the presence or absence of the obligation of the dismissed person to perform educational functions.

If we talk about the application of Art. 336 of the Labor Code of the Russian Federation, it should be noted here that the additional grounds for dismissal provided for by it apply exclusively to teaching staff of the relevant educational or other institutions, i.e. the circle of subjects whose dismissal is permitted is even narrower.

2. Grounds for dismissal under clause 8, part 1, art. 81 Labor Code of the Russian Federation

The concept of an immoral offense is not disclosed in legislation. At the same time, as is known, approaches to the interpretation of moral norms can be completely different and depend on many factors. This circumstance cannot but give rise to contradictions in law enforcement practice.

M.A. Bocharnikova provides an approximate list of acts that the courts, when considering such disputes, recognize as immoral: “The indicated offenses that are incompatible with the continuation of educational work may include scandals, fights, appearance in public places in a state of alcohol, drug or other toxic intoxication, inappropriate behavior in everyday life, cruelty to animals, etc."<2>.

<2>Right there. P. 17.

Most a shining example The immorality of the actions of a teaching worker may be an attempt to induce pupils to engage in acts of a sexual nature, which took place in one of the legal disputes brought about by a dismissed teacher.

I. worked at Kayakent secondary school No. 1 as a teacher of geography and biology. By order of the school director dated January 3, 2002 No. 20, he was dismissed from work under clause 3 of Art. 254 of the Labor Code of the Russian Federation for committing an immoral offense. A criminal case was initiated against I. under Art. 133 of the Criminal Code of the Russian Federation (coercion to acts of a sexual nature).

I. went to court with the above demands, citing the fact that he had not committed an immoral offense, the dismissal was a consequence of his refusal to vote in the election of the head of the Kayakent district administration for a relative of the school director. In a criminal case, he was acquitted by a court verdict.

By the ruling of the judicial panel for civil cases of the Supreme Court of the Republic of Dagestan dated July 2, 2003, the decision of the trial court was canceled and a new decision was made to satisfy the claim.

In a supervisory submission to the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, Deputy Prosecutor General of the Russian Federation Zvyagintsev A.G. asked to cancel the Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Dagestan dated July 2, 2003 and the Determination of the Presidium of the Supreme Court of the Republic of Dagestan dated January 22, 2004, and leave the decision of the court of first instance unchanged.

Having checked the case materials, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation found a supervisory representation from the Deputy Prosecutor General of the Russian Federation A.G. Zvyagintsev. justified and subject to satisfaction on the following grounds.

In accordance with Art. 387 of the Civil Procedure Code of the Russian Federation, the grounds for canceling or changing court decisions in the supervisory order are significant violations of substantive or procedural law. From the materials of the case, in the opinion of the Judicial Collegium, it is clear that the courts of cassation and supervisory instances of the Republic of Dagestan committed significant violations of the norms of substantive and procedural law, expressed in the following.

In accordance with paragraph 3 of Art. 254 of the Labor Code of the Russian Federation, which was in force at the time of I.’s dismissal and provided additional grounds for termination of the employment agreement (contract) of certain categories of workers, the employment agreement (contract) of an employee performing educational functions may be terminated in the event of an immoral offense incompatible with the continuation of this work .

As can be seen from the case, the reason for I.’s dismissal was his immoral behavior towards students of grade 6 “B” Kayakentskaya high school N 1 S., T. and I.A. The court of first instance recognized I.’s dismissal under paragraph 3 of Art. 254 of the Labor Code of the Russian Federation is legal. The court found that I., having invited these students to additional classes, “stepped on their feet, stroked their backs, felt various parts of the body, stood behind them, and pressed them to the table.” Such behavior by I., whose work is directly related to raising children, is immoral and incompatible with the continuation of educational activities.

The Judicial Collegium for Civil Cases and the Presidium of the Supreme Court of the Republic of Dagestan did not agree with the conclusions of the court, believing that, by virtue of Art. 61 of the Code of Civil Procedure of the Russian Federation, the court verdict that entered into legal force, by which I. was acquitted of the charge brought under Art. 133 of the Criminal Code of the Russian Federation in the absence of a crime, was mandatory for the court considering this civil case. Meanwhile, according to paragraph 4 of Art. 61 of the Code of Civil Procedure of the Russian Federation, a court verdict in a criminal case that has entered into legal force is obligatory for the court considering the case on the civil consequences of the actions of the person in respect of whom the court sentence was passed, on the issues of whether these actions took place and whether they were committed by this person. Thus, the prejudicial significance of a court verdict in a criminal case for a civil case is limited only to the questions of whether the relevant act took place and whether it was committed by a given person. All other facts are subject to proof according to the general rules provided for in Art. 56 Code of Civil Procedure of the Russian Federation.

The mere fact of an acquittal against the plaintiff under Art. 133 of the Criminal Code of the Russian Federation is not evidence that he did not commit immoral acts that served as the basis for terminating his employment contract. When considering the criminal case, an incorrect classification of the act committed by I. was established under Art. 133 of the Criminal Code of the Russian Federation, but it was not recognized that he did not commit the actions for which he was fired. The circumstances of I.’s commission of an immoral offense were confirmed in a civil case, investigated and assessed by the court in accordance with Art. 67 of the Code of Civil Procedure of the Russian Federation with evidence: materials of the official investigation, testimony of witnesses and others. This evidence was given a proper assessment in the decision of the court of first instance, and therefore there were no grounds for canceling this decision in cassation<3>.

<3>Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 11, 2005 N 20-vpr05-35.

The previously existing Labor Code of the RSFSR contained in paragraph 3 of Art. 254 similar formulation of the grounds for dismissal of employees performing educational functions, which also gave rise to difficulties in judicial practice. In the current Labor Code of the Russian Federation, the legislator has made an attempt to specify general norm clause 8, part 1, art. 81 by introducing clauses 1 and 2 of Art. 336 additional grounds for dismissal of teaching staff, who in the vast majority of cases provide education to minors. This article gives the employer the right to terminate an employment contract with a teacher in the event of:

• repeated gross violation of the charter of an educational institution within one year;
• application of educational methods to students related to physical and (or) mental violence against the individual.

Both can be regarded as an immoral offense, which indicates competition between the above grounds for dismissal. According to the author, in such cases a special provision of Art. 336 of the Labor Code of the Russian Federation, and clause 8, part 1, art. 81 is grounds for dismissal if the immoral offense does not involve a violation of the charter of the educational institution (although, as practice shows, the charters of many educational institutions provide for the obligation of teachers to observe the norms of general culture and morality in work and life) and physical or mental violence against students.

A typical example is the following court case.

Parents of 7th grade students in one of the Moscow schools contacted the school principal with a written complaint about the behavior of physics teacher Z., who shouted during laboratory work November 19, 2003 against students S, V., Yu. and A., who, in her opinion, did not handle the equipment very carefully, and allowed herself to make offensive statements about them. Correct behavior towards students is included in the responsibilities of a teaching worker listed in the school charter, so the school director, after conducting an appropriate disciplinary investigation, came to the conclusion that Z. had grossly violated the school charter and reprimanded her. The order imposing disciplinary sanctions was issued on November 24, 2003.

On February 5, 2004, the school director received a written complaint from the parents of 9th grade student R., which stated that on February 4, 2004, their son R. was removed from class by teacher Z. during a physics lesson for being unprepared. homework. From the parents’ explanation it followed that R. did not solve the problems in physics that were assigned at home, since on February 3, 2004 he took part in swimming competitions as part of the Moscow swimming championship among youths.

In addition, on February 4, 2004, the head teacher of the high school submitted a memo to the director, which stated that on February 4, 9th grade student R., during the third period, was sitting on a bench near the locker room on the 1st floor of the school. When asked why he was not present in class, R. replied that teacher Z. asked him to leave the class because of unfinished homework.

The school principal has decided to conduct a disciplinary investigation. The explanatory note, which was requested from Z., indicated that R. had indeed not completed his homework, but he was not removed from the class for this. After some time, R. raised his hand and asked permission to leave the class because he had a headache and wanted to go to the medical office. However nurse school confirmed that R. is for medical care February 4, 2004 did not apply.

Order to dismiss Z. under clause 1 of Art. 336 of the Labor Code of the Russian Federation for repeated gross violation of the charter of an educational institution within a year was signed on February 10, 2004.

Z. filed a lawsuit for reinstatement at work and for payment for the time of forced absence, indicating in the statement of claim that the school charter does not contain a list of gross violations of the charter and therefore her actions cannot be considered a gross violation of the school charter.

9th grade students Ya., V., Sh., K., brought by the court as witnesses, testified that Z., angry at R. for unfinished homework, yelled at him and demanded that R. leave the class .

The court, after listening to the parties, examining the testimony of witnesses and examining written evidence in the case, came to the conclusion that the dismissal was legal and justified, since the actions for which Z. was fired actually took place and can be considered a gross violation of the school charter. Firstly, inappropriate behavior towards students is a violation of the duties of a teaching worker as defined by the school charter. Secondly, the school charter established the obligation of the teaching staff to comply with internal labor regulations, which, in turn, provide for the prohibition of teaching and other school staff from removing a student from the lesson.

The court decided to refuse Z.'s claim for reinstatement at work and for payment for forced absence, and this decision seems completely correct. The absence in the school charter of an independent list of gross violations of the charter does not mean that dismissal under clause 1 of Art. 336 of the Labor Code of the Russian Federation is impossible. Failure to fulfill or improper performance of the duties of a teaching employee established by the charter of an educational institution, job description, as well as violation of internal labor regulations can be recognized as a gross violation of the said charter, since it provides for the obligation of an employee of an educational institution to comply with the requirements of relevant local regulations<4>.

<4>Commentary on judicial practice. Issue 10 / Ed. O. Abramova, M. Bocharnikova. M.: Legal. lit., 2004. P. 21.

Often teaching staff challenge the immorality of their own actions, motivating their behavior educational process, as well as students’ misperception of their behavior.

Thus, in particular, several students approached the dean of the faculty of one of the universities with a complaint that teacher K. often touches on the topic of sexual relationships in class, asks them relevant questions, which is perceived negatively by them and is regarded as coercion to acts of a sexual nature.

The dean of the faculty raised the question of dismissal of this teacher in connection with an immoral offense that precluded further implementation of teaching and educational activities to the university management. In the explanatory note, the teacher indicated that the topics he raised were included in the work program of the special course “History of World Culture” and did not go beyond the boundaries of teaching ethics.

However, based on the results of an inspection by the rector of the university, K. was dismissed from the university under clause 8 of part 1 of art. 81 of the Labor Code of the Russian Federation. The labor inspectorate that carried out an inspection on K.’s complaint pointed out to the higher educational institution a violation of K.’s labor rights, because the dismissal order was issued without sufficient grounds, confirmed by anything other than the statements of two female students of the faculty.

Thus, in this dispute, the main point was the perception of the actions of teacher K. on the part of student citizens, and the question of the immorality of his act is quite difficult to objectively assess due to the impossibility of confirming certain factual data.

3. Features of the dismissal procedure under clause 8, part 1, art. 81 Labor Code of the Russian Federation

The implementation of educational activities imposes additional responsibilities on the employees carrying them out related to their behavior not only directly at the workplace, but also in their personal lives.

Dismissal for committing an immoral offense is permitted if it was committed both at the place of work and outside it. This circumstance is of key importance when deciding the issue of the procedure for terminating an employment contract at the initiative of the employer in accordance with clause 8 of Part 1 of Art. 81 of the Labor Code.

If an immoral offense occurred during the performance of official duties during working hours, then, in accordance with the explanation of the Plenum of the Supreme Court of the Russian Federation, dismissal is carried out in compliance with the procedure for bringing employees to disciplinary liability established by Art. 193 of the Labor Code of the Russian Federation, including the period for imposing penalties<5>.

<5>Paragraph 47 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation. N 6. 2004. P. 3.

A special place are occupied by immoral actions of employees carrying out educational activities, committed by them during non-working hours and not in connection with the performance of official duties. In such situations, the question of the validity of dismissal is decided depending on the specific circumstances, including the severity of the offense, the period that has expired after its commission, the presence of its connection with work, the subsequent behavior of the employee and other factors.

According to M.A. Bocharnikova, the above differences in the procedure for dismissing teaching and other employees performing educational functions are not entirely justified, because make the possibility of removing unscrupulous teachers who have committed an immoral offense in the workplace dependent on the expiration of deadlines and other formal circumstances. She proposes to introduce a unified dismissal procedure under clause 8, part 1, art. 81 of the Labor Code of the Russian Federation, which would not provide for compliance with the rules for bringing employees to disciplinary liability. The author believes this proposal is justified, since an employee who has violated moral standards in the workplace, which is more socially dangerous, finds himself in a privileged position compared to persons who committed a violation outside of work activities, because The procedure for imposing disciplinary sanctions is aimed at protecting the interests of the employee and any deviation from it entails the release of the employee from liability. However, in the interests of minors, such an approach in the situations under consideration seems inappropriate.

It would be entirely justified to give the employer the right to dismiss an employee engaged in educational activities for committing an immoral offense during a certain period (longer than the period of imposition of a disciplinary sanction), regardless of where and under what circumstances this offense was committed.

So, for example, the district court considered the case based on the claim of T., who was dismissed from a higher educational institution under clause 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

According to the case materials, T. was fired for committing an immoral offense, which included appearing at a lecture while drunk and using profanity in a speech in front of students that offended the dignity of students. One of the students filmed this lecture on a phone video camera and distributed it among students of this university via the university’s local computer network.

After the discovery of the video recording by the rector of the university, T. was fired.

In the statement of claim, the plaintiff pointed out that the university missed the deadline for imposing a disciplinary sanction for an offense that occurred more than six months ago. Since T.’s immoral behavior was committed by him at the workplace, the court, guided by the above explanation of the Supreme Court of the Russian Federation, recognized T.’s demands as subject to satisfaction and reinstated him at work<6>.

<6>Case No. 2-3732//04 of the Leninsky District Court of Vladimir.

4. Dismissal of teaching staff for using physical or mental violence against students

As already noted, the use of physical or mental violence by a teacher, which is certainly an immoral offense, entails dismissal under clause 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, acts as a special basis for termination of labor relations, provided for in Art. 336 of the Labor Code of the Russian Federation.

Unfortunately, cases of violence against minors in educational institutions various types and species currently occur quite often. Often, dismissal on this basis is challenged by employees in the courts. The most difficult problem, as a rule, is establishing the fact of the use of violence, because It is often impossible to obtain any other evidence other than the testimony of minors themselves.

So, for example, P. went to court with statement of claim about reinstatement at work, indicating that she was unreasonably dismissed for using educational methods related to the use of violence against the student’s personality.

According to the materials of this case, a 3rd grade student secondary school V. On April 11, 2002, he came home three hours after classes ended (classes ended at 11:50 a.m.), explaining that teacher P. locked him in the classroom after school as punishment for unfinished homework and talking in a Russian language lesson and opened the door only at 2 p.m. 45 min.

V.’s parents contacted the school director with a written complaint about P.’s actions and a request to conduct a disciplinary investigation and impose an appropriate disciplinary sanction on the teacher. It followed from P.’s explanatory note that she did not commit the actions that were accused of her, but P.’s explanations were confusing and unconvincing, and the school director decided to terminate the employment contract with P. under clause 2 of Art. 336 of the Labor Code of the Russian Federation for the use, including one-time use, of educational methods associated with physical and (or) mental violence against the personality of a student or pupil. The dismissal order was issued on April 16, 2002.

At the court hearing, the plaintiff supported her claims in full and testified that at the end of lessons she escorted all the students in her class to the locker room at 12 o'clock. locked the classroom and went home.

The school security guard, summoned to court as a witness, confirmed that on April 11, 2002, P. left school at about 12 noon. day and that day she never returned to school. In addition, the mother of R. (classmate V.), also acting as a witness, testified that on April 11, 2002 at about 1 p.m. On the way to the store I saw V. standing at the kiosk with computer games.

The court, after listening to the parties, examining the testimony of witnesses and studying the written evidence in the case, came to the conclusion that P. was dismissed without sufficient grounds, since the fact of the use of physical and mental violence against the student was not proven during the trial. The court decided to satisfy P.’s claim for reinstatement at work and payment for forced absence time<7>.

<7>Commentary on judicial practice. Issue 10 / Ed. O. Abramova, M. Bocharnikova. M.: Legal. lit., 2004. P. 22.

In another case, the court, on the contrary, having questioned large number underage schoolchildren, established the fact of violation by the teacher existing rules implementation of educational activities.

V. worked in a secondary school as a teacher of Russian language and literature since September 16, 1992. By Order No. 99 of December 21, 1999, V. was reprimanded for violating labor discipline. By order of March 9, 2000 No. 17, V. was dismissed from her job under clause 3 of Art. 254 Labor Code of the RSFSR.

Considering the disciplinary sanction and dismissal illegal, V. filed a lawsuit to cancel the orders for disciplinary action and dismissal and for reinstatement at work, recovery of wages for the period of forced absence, indicating in her statement that there were no violations of labor discipline on her part , since after being on a certificate of incapacity from November 23, 1999 to December 8, 1999, on December 9, 1999, she was in the Central District Court of Tver as a participant trial, which was summoned by a subpoena. She considers her dismissal illegal, because did not commit any immoral acts.

Regarding the illegality of her dismissal, the plaintiff explained to the court that immoral, violent actions did not do anything to students R. and A. The representative of the defendant incorrectly qualified her actions; the decision to dismiss was made by the representative of the defendant alone. V. believes that her right to work and constitutional rights were grossly violated, and the dismissal procedure was violated. The dismissal order does not indicate her specific actions and their consequences.

Regarding the dismissal of the plaintiff V., the representative of the defendant explained to the court that on February 15, 2000, during a literature lesson and after it, the teacher of Russian language and literature V. used physical violence against students A. and R., who, sitting at the first desk, were whispering . V. looked at the students, but did not make any comments to them. Then she went up to A. and, pulling him out from behind his desk, sent him to the corner. Then V. came up behind R. and, grabbing him by the shirt, also pulled him out from behind his desk. R. tripped over his briefcase and fell on his desk, as a result of which the septum of the nasal bones was broken and the cuff of his shirt was torn. Calling R. “a bastard and a scoundrel,” V. sent him to the corner. I took their diaries. When the bell rang for class, she told the students to write down their homework. A. went to the teacher’s desk and took his diary to write down the assignment. V. grabbed the diary from the boy’s hands and hit him hard on the cheek with the diary. After this, V. began to write a note in his diary. Having written the note, she closed the diary. A. again reached for the diary. V. hit him on the hand with the diary. After some time, A’s mother came to school. She was outraged by the behavior of teacher B. and wrote a statement asking to understand the situation and take action against the teacher. A. was sent to the emergency room, where he was diagnosed with an abrasion of the soft tissues of the cheek. On February 17, 2000, V. was given a copy of A.’s mother’s statement and asked to provide an explanation for on this occasion, however, V. refused to explain what the act was drawn up. On February 24, 2000, the mother of grade 7 “B” student R. brought a statement with a request to look into the fact of assault committed by teacher V. against her son. This, in turn, prompted the school director to launch an internal investigation. All students who attended the literature lesson on February 15, 2000 were asked to write what they saw. Of the 19 students present that day, 14 confirmed that V. struck A. on the cheek. 5 people did not see this, because ran out of class with the bell or sat at their desk and didn’t see what was happening at the table, because... the other guys surrounded the table, but heard the noise and saw the diary fly to the corner of the table. From February 19 to March 8, 2000, V. was on sick leave. On March 9, she went to work, was given a copy of R.’s mother’s statement and was again asked to write an explanatory note about what happened during and after the literature lesson on February 15, 2000, but V. did not give an explanation. Qualifying the use of physical violence by the Russian language and literature teacher V., performing educational functions, which took place on February 15, 2000 during a literature lesson and after it in the 7th grade against students A. and R., as an immoral act, the administration The school came to the conclusion that it was impossible for V. to continue working as a teacher of Russian language and literature, so a decision was made to dismiss her under clause 3 of Art. 254 of the Labor Code of the RSFSR for committing an immoral offense incompatible with the continuation of this work. At the end of the working day on March 9, 2000, V. was invited to the director’s office, where she familiarized herself with the dismissal order dated March 9, 2000, but refused to sign.

In accordance with paragraph 3 of Art. 254 of the Labor Code of the RSFSR, the employment contract of certain categories of workers may be terminated if an employee performing educational functions commits an immoral offense that is incompatible with the continuation of this work.

Within the meaning of this article, the commission of an immoral offense incompatible with the continuation of this work can serve as grounds for dismissal only in relation to employees engaged in educational activities. According to the job responsibilities of a secondary school teacher, adopted by the pedagogical council on November 5, 1998, in the trade union committee on November 4, 1998 and approved by the director of school No. 10 on November 20, 1998, with which V. was familiarized with her personal signature , the teacher does the following job responsibilities: carries out training and education of the student, taking into account the specifics of the subject being taught, etc. Thus, plaintiff V., working as a teacher of Russian language and literature at school, performed educational functions.

In accordance with paragraph 4 of Art. 18.4 of the Charter of the Municipal Educational Institution of Secondary School No. 10, the use of methods of physical and mental violence against students is not allowed. During the court hearing, it was established that on February 15, 2000, teacher of Russian language and literature V., during a literature lesson and after it in the 7th grade, used physical violence against students A. and R.

This fact is confirmed:

the testimony of witness A., who explained to the court that on February 15, 2000, during a literature lesson taught by teacher V., he and his deskmate R. were whispering. V. looked at them, but made no comment. Then they giggled. V. went up to R., took him by the collar and with a strong jerk pulled him out from behind his desk, which tore his shirt. R. could not resist and fell onto the edge of the desk, but V. continued to push him into the corner. Then she went up to A. and, grabbing him by the collar, took him to a corner. She then took their diaries. When the bell rang and the teacher began to give the assignment, he walked up to the table and took the diary to write down the assignment, but V. snatched the diary from his hands and, calling him a “bastard,” hit him in the face with the diary, causing him to feel dizzy and dizzy , an abrasion formed on the cheek. Then V. wrote down the remark in her diary. A. again reached for the diary, but in response V. hit his hands with the diary. After that, he went to the principal’s office and told the head teacher about what had happened. On the same day, he went to the emergency room, where bodily injuries were recorded;

testimony of witness A.N. - mother A., ​​who explained to the court that on February 15, 2000, her son came running from school excited and said that the teacher had hit him. His cheek was red. She went to school to figure it out. The head teacher was at the school, but teacher V. was no longer there. She wrote a statement. The son complained of dizziness, and she asked the head teacher Yu. to go with the child to the emergency room, because... she couldn't do it herself family circumstances. About 2 weeks later, 5 men came to her home, began to defend V., and then said that her son was a hooligan, after which she asked them to leave the apartment. On the eve of May 9, V.’s defenders came to her again, asked her to take the statement from the police, they said that V. had a difficult life, they said that V. emotional state hit her son. Then a woman called her repeatedly and persuaded her to withdraw her statement from the police;

testimony of witness F., who explained to the court that on February 15, 2000, he was present at a literature lesson taught by V. He was sitting in the 3rd row at the 2nd desk, behind the desk where R. and A were sitting. During the lesson R. and A. were whispering. V. reprimanded them. Towards the end of the lesson, A. and R. laughed. V. pushed A. by the collar and took her to a corner. Then - R., but he tripped over his briefcase and hit the bridge of his nose on the desk. When the bell rang, A. went to the teacher's desk to pick up his diary. A. took the diary, but B. snatched the diary from A.’s hands and hit him in the face with the diary. Then she sat down and began to write a note in her diary. The blow from the diary left A. with a scratch on his cheek;

the testimony of witness Sh., who explained to the court that on February 15, 2000, during a literature lesson taught by V., R. and A. sat at the same desk and whispered, then laughed quietly. V. took R. by the collar and dragged him into the corner, he tripped and hit his nose on the table, she dragged R. by the collar all the way to the corner, tore his shirt. Then she took A. by the collar and also put him in the corner. She also put him in the corner, then put him out the door, but then returned him to the classroom. He saw V. hit A. in the face with a diary. After the blow, A. got a scratch;

testimony of witness Sh.T. - Sh.’s mother, who explained to the court that on February 15, 2000, her son came home excited and worried about what happened in the literature lesson. My son was offended that the teacher called him a bastard. She claims that her son cannot be persuaded to give the “necessary” testimony. He only says what actually happened;

testimony of witness K., who explained to the court that on February 15, 2000, V. taught a literature lesson in their class. A. and R. were talking in class. V. reprimanded them, they fell silent, and then started talking again. V. approached the guys and dragged them into the corner, first one, and then the other. When V. pulled R. by the shirt, he fell. When the bell rang from class, she packed her things and left, so she didn’t see how V. hit A. in the face with the diary, because already left the class;

testimony of witness P., who explained to the court that on February 15, 2000, a literature lesson in their class was taught by V., A. and R. whispered in class, and then giggled. He saw how V. approached R., grabbed him by the collar, so that he fell on the desk. Then V. pulled R. out from behind his desk and pushed him to the corner. He did not see how A. was pulled out from behind his desk;

testimony of witness Z., who explained to the court that on February 15, 2000, during a literature lesson, V. pulled A. and R. out from behind their desks and put them in a corner because they were talking in class. When V. pulled R. out from behind his desk, he hit his nose on the desk. Then V. took the guys’ diaries to write down the remark. When the bell rang from class, A. took his diary from the teacher’s desk to write down his homework. V. snatched the diary from A. with the words: “Why are you taking the diary from the teacher’s desk without permission?” - and hit him in the face with the diary. In her opinion, this was done on purpose, and not by accident. She sits at the 2nd desk behind A. and R.’s desks, so she saw and heard everything;

the testimony of witness I., who explained to the court that on February 15, 2000, during a literature lesson, teacher V. took R. and A. by the collar and put them in a corner because they were whispering in class. This happened about halfway through the lesson. When V. took R. by the collar, he tripped and hit the desk. When the bell rang from class, A. took his diary from the teacher’s desk, V. snatched the diary from A.’s hands and hit A. on the cheek with it. The witness could clearly see this. A.’s cheek became red from the blow, and then a bleeding scratch appeared on it. R. and A. were in shock. The children were outraged by teacher V.’s action, so they went to the school principal;

the testimony of witness L., who explained to the court that she learned about what happened on February 15, 2000 during a literature lesson from the words of the children who came home that day outraged by the teacher’s behavior;

a resolution to terminate the criminal case in part dated April 17, 2000, according to which on February 15, 2000, during a literature lesson in high school, teacher V. grabbed student R. by the clothes, pulled him sharply towards her, which is why R. did not have time to get up, tripped and hit the bridge of his nose on the corner of the desk. Thus, as a result of negligence, V. caused R. a fracture of the nasal bones without displacement of the fragments, which, according to the conclusion of the forensic medical examination, is a slight harm to health. Since criminal liability for careless infliction of minor harm to health is not provided, the criminal case against V. on this fact was partially terminated;

certificate in a criminal case dated August 8, 2000 N 020319, according to which on February 25, 2000, the prosecutor of the Moscow region opened a criminal case for causing A. bodily harm under Art. 116 of the Criminal Code of the Russian Federation, and on March 3, 2000 - a criminal case on the fact of causing bodily harm to R. under Art. 115 of the Criminal Code of the Russian Federation. The proceedings in the case were suspended due to the search and illness of V. On July 17, 2000, the investigation into the criminal case was resumed;

statements by A. and his mother asking them to look into the incident of assault and take action against teacher V.;

A.’s diary, where for February 15, 2000, in the “Literature” column, V. wrote the remark “The behavior is disgraceful”;

statement by R., according to which on February 15, 2000, her son R. came home with a torn shirt cuff and redness on the bridge of his nose.

Thus, the fact of the use of physical violence by teacher V. during a literature lesson and after it against students of the 7th grade of the secondary school A. and R., which took place on February 15, 2000, was fully confirmed in the court hearing. The court has no reason not to trust the interrogated witnesses and written evidence. The testimony of the witnesses is specific, consistent, and consistent with the testimony of other witnesses and the written evidence. Written evidence is properly prepared. All evidence is admissible and relevant and, taken together, confirms the existence of circumstances justifying the defendant’s objections.

The court indisputably established that A. and R. violated discipline in class, whispering and giggling, and A. showed bad manners and took the diary from the teacher’s desk without permission, but this did not give V. the right to use physical violence against them for this. The court considers that the high school administration correctly qualified V.’s actions on February 15, 2000 in a literature lesson against students A. and R. as an immoral offense incompatible with continuing to work as a teacher. This immoral offense is sufficient for dismissal on this basis, regardless of the fact that V. was certified in 1996 and was assigned the 1st category.

Having checked the legality and validity of V.’s dismissal under clause 3 of Art. 254 of the Labor Code of the RSFSR, the court concluded that the dismissal was legal and justified. However, the procedure for dismissal on this basis was not violated. Labor legislation does not require the prior consent of the relevant elected trade union body upon dismissal under clause 3 of Art. 254 Labor Code of the RSFSR. The fact that Vlasova G.V. is a member of a free trade union - TTOSP SMOT, also does not oblige the administration to obtain the preliminary consent of this organization for dismissal, since this trade union has nothing to do with the school staff<8>.

<8>Judicial practice in labor cases / Comp. DI. Rogachev. M.: TK "Velby", publishing house "Prospekt", 2004. P. 26.

5. Legal consequences of committing an immoral offense by a teacher

If the administration of an educational, training or other institution establishes that a teaching employee has committed an immoral offense, the manager is given the right, at his own discretion, taking into account all the circumstances, to decide to terminate the employment contract with this employee. However, in practice there are cases of demotion of violators, which is recognized by the courts as unlawful.

Savina S.N. worked as head of the department foreign languages Elabuga State Pedagogical Institute. By order of the rector of the institute dated April 25, 1994 N 31-d, she was relieved of her position under clause 3 of Art. 254 of the Labor Code of the Russian Federation for committing immoral offenses incompatible with the continuation of this work.

By Order No. 36-d with additions made by Order No. 47-d dated June 1, 1994, Savina S.N. was hired as an associate professor of the same department of foreign languages ​​on April 26, 1994. On November 11, 1995, the institute announced a competition to fill the position of associate professor of the department of foreign languages. About the competition Savina S.N. was notified, but did not submit an application to participate in the competition.

By order of July 16, 1996 N 66-k Savina S.N. was dismissed from her position as an assistant professor because she had not submitted an application for the competition.

Considering that the dismissal from the post of head of the department and dismissal from the post of associate professor of the department violate her rights and are caused by the hostile attitude of the institute’s management towards her, Savina S.N. filed a lawsuit for reinstatement at work. The case was repeatedly considered by courts at various levels.

By the decision of the Yelabuga City Court dated February 18, 1998, left unchanged by the ruling of the judicial panel for civil cases of the Supreme Court of the Republic of Tatarstan dated April 17, 1998, the claims were denied.

Ultimately, the case was considered by the supervisory authority by the Presidium of the Supreme Court of the Russian Federation, which recognized the judicial acts as subject to cancellation on the following grounds.

In accordance with paragraph 3 of Art. 254 of the Labor Code of the Russian Federation (in force at the time of the plaintiff’s dismissal), which provides additional grounds for termination of the employment agreement (contract) of certain categories of workers, the employment agreement (contract) of an employee performing educational functions may be terminated in the event of an immoral offense incompatible with the continuation of this work.

Within the meaning of the above rule of law, in the opinion of the Presidium of the Supreme Court of the Russian Federation, when workers and employees performing educational functions commit an immoral offense, it is impossible for these persons to continue any other activity, namely educational activity.

In this case, the employment agreement (contract) of workers and employees with an enterprise, institution, organization when applying clause 3 of Art. 254 of the Labor Code of the Russian Federation is terminated and the named persons cease to carry out educational functions.

As can be seen from the case materials, the plaintiff worked at the institute for 24 years and was elected head of the department of foreign languages ​​three times through a competition. On September 13, 1990, the academic council of the institute re-elected her to this position for a new five-year term, which had not expired at the time of her dismissal. At the same department she taught students.

The reason for the release of Savina S.N. from the position of head of the department under clause 3 of Art. 254 of the Labor Code of the Russian Federation was based on the facts of her insulting the teachers of the department. The court considered these actions an immoral offense, incompatible with continued work in his position.

It also follows from the case materials that the plaintiff was not actually dismissed by the defendant, but, having been dismissed from her position as the head of the department, continued to work here as an assistant professor, while her educational activities were not interrupted for a single day (case files 4 - 6, 16 v. 1).

The courts did not take into account that, in accordance with the charter of the Elabuga State Pedagogical Institute and the regulations on the departments of the Elabuga State Pedagogical Institute, approved in the prescribed manner, the implementation of educational functions is one of the main activities of the teaching staff of the institute in working with students. Production functions of the manager structural unit(departments) of the institute are not limited to the implementation of educational activities in relation to subordinate employees (see clause 4 of the charter, clauses 1, 2, 3 of the regulations). Consequently, the plaintiff could not be dismissed on the grounds of impossibility of continuing educational activities.

Thus, the courts allowed the incorrect application of the substantive law, and therefore the decision of the court of first instance and subsequent court decisions in this part are subject to cancellation with the issuance of a new decision in the case on the reinstatement of S.N. Savina. in his previous position as head of the department of foreign languages ​​at the Elabuga State Pedagogical Institute<9>.

<9>Resolution of the Presidium of the Supreme Court of the Russian Federation dated July 21, 1999 N 71pv-99pr // Legality. 1997. N 4. P. 37.

Based on the above example, it can be pointed out that it would be quite reasonable to introduce changes to labor legislation that would allow the employer, in addition to dismissing an employee who has committed an immoral offense, to also transfer him to another position in the organization that does not involve performing educational functions. Naturally, such a transfer is possible only with the consent of the employee, and in the event of his refusal, the employment relationship must be terminated.

Summing up the consideration of the issues of dismissal of employees engaged in educational activities for committing immoral offenses, including the use of educational methods associated with physical or mental violence against the personality of students, attention should be paid to a number of issues.

In particular, there is a need for a clearer explanation from the Supreme Court of the Russian Federation about what should be recognized as immoral actions of employees performing an educational function. Although it is impossible to give an exhaustive list of immoral offenses, as well as to indicate the content of moral norms, based on a generalization of judicial practice, it is quite possible to identify their most common types.

Some amendments should be made to the labor legislation to establish a unified procedure for dismissing workers for immoral offenses committed both in the workplace and at home.

A.S. Feofilaktov

Boss

legal department

Vladimirsky

state

Only employees performing educational functions (teachers, professors, mentors, educators, nannies and other persons engaged in educational activities) can be dismissed for committing an immoral offense. Employees performing only technical and auxiliary duties (watchman, driver, supply manager, accountant) cannot be dismissed on this basis (clause 46 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

The concept of “immoral offense” is not defined in law. Therefore, the employer independently decides which offense should be considered immoral. In practice, immoral offenses include petty hooliganism, drinking alcohol in a public place, involving minors, fighting, cruelty to animals, drug use, foul language in the presence of minors, etc.

For dismissal on this basis, it does not matter where the offense was committed (at work or at home) (clause 46 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2) and whether children witnessed its commission.

If an immoral offense was committed at work while performing a job function, then upon dismissal one should be guided by the general rules for applying disciplinary sanctions.

If the offense bears the characteristics of a crime, then the employer has the right to contact law enforcement agencies, but his decision will be sufficient for dismissal.

Important! The application of punishment in the form of dismissal in this case is only the right of the employer. Therefore, he may limit himself to a reprimand or remark, or not apply a penalty to the employee at all.

A practical situation. What measures should the school administration take to discipline a teacher for using obscene language?

The administration may apply disciplinary measures to the employee, for example in the form of a reprimand or dismissal, subject to compliance with the procedure established by law.

In accordance with paragraph 47 of the Resolution of the Plenum of the Armed Forces of the Russian Federation, if an immoral offense is committed by an employee at the place of work and in connection with the performance of his job duties, such an employee may be dismissed from work on the grounds provided for in paragraph 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, subject to compliance with the procedure for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. It should also be taken into account that, according to paragraph 2 of Art. 55 of the Law of the Russian Federation of July 10, 1992 No. 3266-1 “On Education”, a disciplinary investigation into violations by a teaching employee of an educational institution of the norms of professional conduct and (or) the charter of this institution can be carried out only upon a complaint received against him, submitted in writing. A copy of the complaint must be given to the teaching staff member. After receiving a complaint from parents, the school principal should create a commission to investigate the incident. The commission must demand explanations from the teacher and interview students whose parents wrote complaints. If the fact of using obscene language is confirmed, the employer will have the right to fire the teacher.

2. Registration of the fact of committing an immoral offense

There is no unified document that needs to be drawn up when it is discovered that an immoral offense has been committed. In practice, this fact is recorded in a report from the person who discovered it. If there are several witnesses, then a report should be drawn up. The report or act must reflect:

Last name, first name, patronymic of the employee who discovered the fact of the offense;

The circumstances under which the offense was committed;

Date and time of commission.

If employees of an organization received information about an illegal action directly from law enforcement agencies or from third parties, then filing a report is not necessary.

Based on these documents, the employer initiates an internal investigation, the task of which is to identify the culprit.

Some immoral offenses may have signs of a criminal crime or an administrative offense, the guilt of the employee for which is determined by the court.

The commission of a criminal offense may be considered sufficient grounds for imposing a penalty in the form of dismissal. Copies of the verdict or resolution on an administrative offense (if available) are evidence of the fact that the employee committed an immoral offense.

A commission to investigate an employee’s immoral offense should be created regardless of where the immoral offense was committed.

An order is issued on the formation of the commission, which indicates the names and positions of the employees included in its composition, the purpose and date of creation of the commission, the period of its validity (it may not be limited to a specific case), as well as the powers of the commission.

The commission to investigate the commission of an immoral offense has the following tasks:

Establishing the circumstances of the commission of an immoral offense, including the time, place and method of its commission;

Identification of persons directly guilty of committing an immoral offense;

Identification of the reasons for committing an offense;

Determining the possible punishment for a person who has committed an immoral offense.

The commission has the right to demand explanations from employees suspected of committing misconduct, and if they refuse to provide explanations, draw up an appropriate act. If such explanations are received during the investigation, then it is no longer necessary to demand them again when imposing a penalty.

The order to create the commission must be familiarized with signature to all employees included in it. It is not necessary to introduce it to the employee who is being investigated, since the legislation does not contain such a requirement.

The results of the commission's work are reflected in the corresponding act. A unified form of this document has not been approved, so the employer can develop it independently. The act must reflect:

The names and positions of all commission members;

Date, exact time and place of drawing up the act;

The basis and timing of the investigation;

List of activities carried out (briefly);

Time, place and circumstances of the commission of the offense;

Reasons and conditions for committing an offense;

Last names, first names and patronymics of the guilty persons and the degree of their guilt;

Proposed penalties (taking into account the personal and business qualities of the perpetrators) or further actions.

If the immoral offense was not committed at work, then it is indicated how the employer learned about it (a complaint from neighbors, a police complaint, etc.).

If an employee commits a crime or an administrative offense, the verdict or resolution of the court, as well as another body on the application of administrative punishment, is evidence of the commission of an immoral offense and the results of their study by the commission are reflected in the decision.

In addition, the act may contain other information.

The act is signed by all members of the commission. The employee guilty of committing an immoral offense must be familiarized with it against signature. If he refuses or evades familiarization, a corresponding act is drawn up.

All collected evidence of the commission of an immoral offense (memos, written testimony, acts, complaints from victims and other documents, including photographs, videos, printed materials (if the case has become public)) is attached to the commission’s act.

3. Obtaining an explanation from an employee who has committed an immoral offense

Before issuing an order to apply a disciplinary sanction in connection with the commission of an immoral offense, a written explanation must be required from the employee (Article 193 of the Labor Code of the Russian Federation). The Labor Code of the Russian Federation does not specify in what form such an explanation must be requested. Therefore, if the employee is ready to draw up an explanatory note, a written request need not be issued. If the situation is clearly of a conflict nature, then it is better to formalize this requirement in writing and familiarize the employee with it against signature. If he refuses to sign, a corresponding act must be drawn up.

If, after two working days from the date of presentation of the demand, the employee has not provided an explanation, then the corresponding act is drawn up (Article 193 of the Labor Code of the Russian Federation). If there is such an act and a document indicating that an explanation was requested from the employee, issuing an order (instruction) on the termination (termination) of an employment contract is possible without an explanatory note (Article 193 of the Labor Code of the Russian Federation).

4. Drawing up an order to apply a disciplinary sanction in the form of dismissal and an order (instruction) to terminate (terminate) an employment contract with an employee for committing an immoral offense

Dismissal for committing an immoral offense is one of the forms of disciplinary action (Part 3 of Article 192 of the Labor Code of the Russian Federation). In accordance with Art. 193 of the Labor Code of the Russian Federation, the application of a penalty must be formalized by order (instruction) of the employer. Thus, before issuing an order to dismiss an employee, it is necessary to draw up an order to impose a penalty on him.

There is no unified form for such a document, so the organization develops it independently. The order must include the following information:

Last name, first name, patronymic of the employee;

Employee position;

The structural unit where the employee works;

The offense committed by the employee, with references to the violated clauses of the contract or job description and to documents confirming this violation;

The circumstances of the commission of the offense, the degree of its severity and the guilt of the employee.

As the basis for issuing an order, the details of the act, memorandum or other document recording the misconduct, the employee’s explanatory note or the act of refusal to provide explanations are indicated.

After issuing an order to apply a penalty in the form of dismissal and familiarizing the employee with it, it is necessary to draw up an order (instruction) to terminate the employment contract (unified form No. T-8, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1). It must indicate that the employment relationship is terminated in accordance with clause 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation in connection with the commission of an immoral offense. The “Grounds” column should reflect the details of the order to apply a disciplinary sanction.

The order must be familiarized to the employee against signature. If he refuses to sign, an entry is made in the order: “I have read the order, but refused to sign” or “It is impossible to familiarize it with signature” (Part 2 of Article 84.1 of the Labor Code of the Russian Federation).

In practice, as a rule, only one order is drawn up (Form N T-8). However, it should be noted that drawing up two orders when formalizing the application of a disciplinary sanction in the form of dismissal in the event of a dispute with an employee will significantly reduce the risk of the court recognizing a violation of this procedure.

If an immoral offense is committed at work, then the employee can be dismissed no later than one month from the date of discovery of this fact, but no later than six months from the date the offense was committed. The day of discovery is considered the day when the employee’s immediate supervisor became aware of the commission of an immoral offense.

If an immoral offense was not committed at the place of work and not while performing job duties, then the dismissal of an employee is not a disciplinary measure, the application of which is limited by time in accordance with Art. 193 Labor Code of the Russian Federation. In this regard, dismissal can be made at any time, but no later than one year from the moment the offense was discovered (part 5 of article 81 of the Labor Code of the Russian Federation and paragraph 47 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

5. Registration of a work book and personal card upon dismissal for committing an immoral offense

Information about dismissal is entered into the work book, and it is indicated that the employee is dismissed for committing an immoral offense on the grounds of clause 8, part 1, art. 81 Labor Code of the Russian Federation. Upon receipt of the work book, he must sign in the personal card and in the book recording the movement of work books and inserts in them (clause 41 of the Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”).

A record of dismissal for committing an immoral offense on the grounds of clause 8 of Part 1 of Art. 81 Labor Code of the Russian Federation. Upon receipt of the work book, the employee must sign the personal card (clause 41 of the Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”).

6. Payments that must be made to an employee upon dismissal for committing an immoral offense

When an employee is dismissed for committing an immoral offense, he must be paid wages for the period worked, compensation for unused vacation and other amounts due (bonuses, etc.). Payment is made on the day of dismissal, which is recognized as the last working day (Articles 84.1 and 140 of the Labor Code of the Russian Federation).

If the employee did not work on the day of dismissal, then these amounts must be paid no later than the next day after the dismissed person presents the corresponding demand (Article 140 of the Labor Code of the Russian Federation). However, the Labor Code of the Russian Federation does not establish the form of such treatment. This means that an oral statement from the employee is sufficient. In the event of a dispute about the amount of amounts due to an employee upon dismissal, on the day of dismissal or filing a corresponding demand, he must pay the undisputed amount (Article 140 of the Labor Code of the Russian Federation). This amount should be understood as the amount for which the employee has no claims.

If a dispute arises about the amounts to be paid (for example, about the amount of compensation for unused vacation or bonuses), these issues are resolved after termination of the employment contract in the manner prescribed for the consideration of an individual labor dispute (Chapter 60 of the Labor Code of the Russian Federation).