The employer dismisses you under the article. Not of your own free will: why you can be fired

Aida Ibragimova, head of human resources department of KSK group

08.02.2016

These three points must be taken into account before dismissing an unscrupulous employee under the article. Learn about them through a case study.

In almost all organizations there are employees who do not cope well with their duties: they are often late, do not meet deadlines for completing tasks, and violate established rules. Managers do not know how to deal with such employees. When the boss’s verbal comments do not work, it is necessary to apply disciplinary sanctions: a reprimand, a reprimand, or, as a last resort, dismissal.

In Art. 81 of the Labor Code of the Russian Federation specifies the reasons why a contract may be terminated at the initiative of the employer. It's about on the dismissal of an employee for repeated violation of his labor duties (clause 5 of Article 81 of the Labor Code of the Russian Federation).

Next, we will consider in which cases an employee can be fired for systematic violation of labor duties, what conditions are important to take into account, and how to competently formalize the imposition of a disciplinary sanction so that the court recognizes the dismissal as legal and does not allow the employee to be reinstated in his position.

Misconduct for which you can be dismissed under the article

Dismissal under this article is possible if the employee commits actions that are prohibited employment contract, job description, local normative act, by order of the employer, norms of labor legislation and other regulatory legal acts containing provisions of labor law, or, conversely, if the employee does not perform the actions provided for by these documents.

Paragraph 35 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" includes the following violations:

Absence of an employee without good reasons at work or workplace;
- Refusal by an employee, without good reason, to perform job duties in connection with a change in labor standards in accordance with the established procedure, since by virtue of the employment contract, the employee is obliged to perform the labor function specified in the employment contract, to comply with the internal labor regulations in force in the organization;
- Refusal or avoidance without good reason from medical examination workers of certain professions, as well as the employee’s refusal to undergo working hours special training and passing exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work.

This list is given in the resolution of the Plenum of the RF Armed Forces and, of course, is not exhaustive. Such violations include any failure or improper performance by an employee of his or her job duties without good reason. When dismissing for repeated failure to fulfill job duties, the employer must have a clear position and irrefutable evidence of the employee’s guilt. The obligation to provide evidence of the legality and validity of applying a disciplinary sanction to an employee, as well as evidence of compliance with the procedure for its application, rests with the employer (Appeal ruling of the Smolensk Regional Court dated February 24, 2015 in case No. 33-631/2015).

Conditions required for dismissal

Before applying a disciplinary sanction in the form of dismissal under clause 5 of Art. 81 of the Labor Code of the Russian Federation, it is necessary to check whether the following conditions are met:

1. Requirements for the employee must be recorded in documents, and the employee must be familiarized with them against signature

It is possible to apply a disciplinary sanction to an employee only if the employee, against signature, has been familiarized with the documents establishing the requirements and prohibitions. As part of the activities of KSK groups, we provide consulting services, and often we receive complaints from clients that their employees do not fulfill job responsibilities. We always draw the attention of clients to the fact that it is necessary to bring all personnel documentation into compliance with labor legislation. If there is no document establishing the rules, then there is no way to prove a violation of these rules.

2. The employee has an outstanding disciplinary sanction

A disciplinary sanction or reprimand should not be lifted early and its validity period should not expire (one year from the date of issuance of the order to apply the penalty). A disciplinary sanction can be issued as a reprimand or a reprimand. For dismissal, one outstanding disciplinary sanction is enough; for the second, you can already be fired. If an employee has several disciplinary sanctions, this will strengthen the employer’s position, as it indicates that the employee was given a chance to improve. In this case, dismissal is a last resort, because previous disciplinary sanctions had no effect on the employee.

3. The severity of the offense and the circumstances of its commission

In accordance with paragraph 53 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” if a dispute arises, the employer will need to provide evidence indicating that:

– the employee committed a disciplinary offense;

– when imposing a penalty, the severity of this offense and the circumstances under which it was committed (Part 5 of Article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee and his attitude to work were taken into account.

This means that the offense must be proportionate to the punishment. A disciplinary sanction in the form of dismissal cannot be applied for an employee being 15 minutes late if there were no previous complaints about the employee’s work. It is also prohibited to apply multiple disciplinary sanctions for the same act. For example, you cannot reprimand an employee for one delay and fire him for the same. The employer’s behavior will be unlawful if he “accumulates” the employee’s tardiness and one day reprimands and dismisses the employee.

4. Time limits for applying disciplinary action

A disciplinary sanction can be applied within one month from the date of discovery of the misconduct and six months from the date of its commission (based on the results of an inspection of financial and economic activities or an audit - no later than two years from the date of the commission of the disciplinary offense). The day of discovery of the offense is the day when it became known that the offense had been committed.

Please note that the monthly period for applying a disciplinary sanction does not include the time the employee is ill, on vacation, or the time required to comply with the procedure for taking into account the opinion of the representative body of employees (Part 3 of Article 193 of the Labor Code of the Russian Federation).

Procedure for imposing disciplinary sanctions

Dismissal for repeated failure to fulfill job duties requires strict adherence to the procedure. Let's look at what documents need to be completed:

1. Memo on failure to fulfill labor duties

The employee’s misconduct must be recorded by the immediate supervisor in a memo addressed to the general director. The memorandum confirms the fact of violation by the employee of labor duties and is the basis for applying disciplinary action.

2. Act on committing a disciplinary offense

The commission of a disciplinary offense by an employee must be recorded in an act. The act is drawn up by three employees, including the immediate supervisor and a HR specialist. The employee must be familiarized with the act against signature.

3. Notice of provision of written explanations

Before applying a disciplinary sanction, an explanation must be requested from the employee. In order to confirm in the event of a dispute that explanations have been requested, such a notice must be drawn up in writing and handed to the employee against signature. In case of refusal to receive the notice, it must be read aloud to the employee and an act of refusal to receive the notice must be drawn up.

If, after two working days from the date the employee was asked for an explanation, he did not provide it or refused, then a report is drawn up. If there is an act and document that an explanation was requested from the employee and received by him, dismissal is possible without a written explanation from the employee.

4. Taking into account the opinion of the representative body

Dismissal of workers who are members of a trade union under clause 5 of Art. 81 of the Labor Code of the Russian Federation is carried out taking into account the reasoned opinion of the elected body of the primary trade union organization.

5. Registration of termination of the employment contract

Upon termination of an employment contract with an employee under clause 5 of Art. 81 of the Labor Code of the Russian Federation, one should be guided by the general rules of dismissal. The following documents must be prepared: an order to terminate the employment contract, a settlement note, a work record book, and the employee’s personal card.

Case Study

A client contacted us to conduct a personnel audit. As part of providing audit services, we also advise clients on all issues of application of labor legislation. One of the company’s employees was a single mother and “actively” took advantage of it. When checking the employee's personal file, we discovered large number memos about her failure to fulfill her labor duties. Previously, the client tried to lay off the employee, but in response she filed a complaint with labor inspection and went to court (although the employment contract was not terminated). The employer's position was a losing one, since it is impossible to lay off a single mother by law, and the procedure itself was not formalized correctly.

We advised the client to issue an order to suspend the dismissal procedure for the employee, and also to notify that her position would be retained. Despite this, the issue of dismissal remained relevant for the client; the employee increasingly began to violate labor discipline, and in response to the employer’s comments, she used the argument that she was a single mother. The woman held the position of sales manager, systematically left workplace ahead of schedule, went on vacation without permission without warning.

A personnel audit showed that the client’s company maintained personnel records with serious violations and many required documents were missing, as a result of which it was impossible to file a claim against the employee.

We have drawn up a plan for the client to restore personnel documents and instructions for behavior in relation to the problematic employee:

Draw up a detailed job description for a sales manager, which should describe all responsibilities and indicate to whom the manager reports;
- install in job description that the sales manager is obliged to carry out the instructions of the immediate supervisor and the general director;
- establish monthly sales plans that must be met by all sales managers.

Only after the employee has approved and familiarized herself with all the specified personnel documents can disciplinary sanctions be applied. For example, for failure to fulfill the sales plan, orders of the manager, violation of labor discipline - a reprimand or reprimand, and in case of repeated violation - dismissal of the employee.

As a result, two disciplinary sanctions were drawn up against the employee; when she committed a third offense, a dismissal procedure was followed under clause 5 of Art. 81 Labor Code of the Russian Federation. The employee asked for the opportunity to resign at will, because I didn’t want such an entry in the work book. The employer met her halfway, and the employment contract was terminated.

Is it possible to fire an employee if he is on sick leave to care for a sick family member? - Yes, you can.

Is it possible to dismiss a minor employee at the initiative of the employer? – It is possible, but only with the consent of the labor inspectorate.

Is it possible to fire an employee for absenteeism if his employment contract does not indicate a specific place of work? - No, you can’t.

Labor legislation gives the employer the opportunity to dismiss employees on his own initiative. But in practice, personnel officers often forget that in addition to this right, they have a number of responsibilities that must be fulfilled in order to realize it. How to fire an employee correctly, avoiding mistakes? What should you pay attention to first of all? What difficulties can you encounter when dismissing an employee at the initiative of the employer?

When can an employer not fire an employee?

An employer does not have the right to dismiss an employee if:

he is on leave (annual, educational, child care, leave without pay wages etc.);
he is on sick leave.

This rule applies even if the employee works from home or part-time. In addition, try not to forget that there are special categories of employees who either cannot be dismissed at the initiative of the employer, or for this a certain procedure must be followed (table on page 40).

Restrictions upon dismissal special categories workers

	Measure	Exception	Norm
Pregnant women		Liquidation of an organization	Part one art. 261 Labor Code of the Russian Federation
Women with children under three years of age	You cannot be fired at the initiative of the employer	Liquidation of the organization; guilty actions of an employee	Part four art. 261TC RF
Single mothers raising children under the age of 14 or disabled children under the age of 18, as well as other persons raising such children without a mother	You cannot be fired at the initiative of the employer	Liquidation of the organization; guilty actions of an employee	Part four art. 261 Labor Code of the Russian Federation
Minor workers under 18 years of age	You can dismiss only with the consent of the labor inspectorate and the commission on minors' affairs	Liquidation of an organization	Article 269 of the Labor Code of the Russian Federation
Trade union members, elected trade unionists	You can dismiss under clauses 2, 3 and 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation only when taking into account the motivated opinion of the trade union	If the trade union does not provide a reasoned opinion	Part two art. 82, 373, 374 Labor Code of the Russian Federation
Representatives of workers participating in collective negotiations and in resolving collective labor disputes	Can be dismissed only with the consent of the body that authorized them to represent	Guilty actions of the representative	Articles 39, 405 of the Labor Code of the Russian Federation

What to do if you are faced with a difficult dismissal case?

Let's look at some of the most common and complex issues related to the dismissal of employees at the initiative of the employer.

Unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation). Remember that you will not be able to dismiss an employee on this basis if:

there is no provision for probation in the employment contract (in this case, the test is considered unspecified);
the employer missed the deadline for notice of dismissalon this basis (dismissal will be considered illegal);
the employer did not record the results of the work performed by the employee, did not evaluate its quality (that is, there are no documented grounds for dismissal).

Reduction of number or staff (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation). It is also not possible to dismiss employees on this basis in all cases. For example, you cannot do this if:

the reduction procedure was not followed (part three of Article 81, Article 180 of the Labor Code of the Russian Federation);
the position subject to reduction is occupied by an employee who cannot be dismissed at the initiative of the employer (for example, a pregnant employee);
the employer did not fulfill the mandatory conditions necessary to dismiss certain categories of employees (for example, did not obtain the consent of the labor inspectorate to dismiss a minor employee).

Attention!
Remember that it is not the employee who is being laid off, but the staff unit or position.

Example

Attribute LLC has a network of branches. Each of them has the position of a personnel inspector. But general manager decided that personnel records management will be carried out only in the central office and the position of “HR inspector” in the branches needs to be reduced. In this regard, management issued an order to reduce the number of employees and handed all employees notices of the upcoming dismissal. At the same time, there were no vacant positions in the branches.

Two days before her dismissal, Elizaveta Ivanchuk refused to sign the dismissal order. She motivated this by the fact that she is single-handedly raising a disabled child at the age of five, which means she cannot be fired. And provided supporting documents. Therefore, after the new staffing table came into force, Ivanchuk continued to go to work and spend her working time in the office, doing nothing. What should an employer do?

The General Director of Attribute LLC solved this problem as follows. He made changes to the previously issued order to reduce staff and returned her position to the branch staffing table. Thus, the employee was provided with work. In the future, she will be able to be offered vacant positions in order to transfer to new job, later reducing the position of HR inspector.

Law against practice

In practice

The employer decided to dismiss employee Shpyneva for repeated failure to fulfill her job duties without good reason, since for several days in a row she took her lunch break an hour earlier (not from 13-14 o'clock, but from 12-13 o'clock). Although the manager had previously verbally agreed with her about what hours Shpyneva would have lunch (the employee’s lunch time is not specified in the internal labor regulations and the employment contract).

In law

In accordance with Article 189 of the Labor Code, labor regulations are determined by the internal labor regulations.

What will happen if...

It will not be possible to dismiss an employee on this basis in this case, since neither the company’s internal labor regulations nor the employment contract indicate the employee’s lunch break time. But a verbal agreement with the manager cannot be taken into account.

The general procedure for registering termination of an employment contract is regulated. This article describes an algorithm of actions that must be followed.

Termination of an employment contract is formalized by order (instruction) of the employer. Usually a unified form is used, which is approved.

The employee must be familiar with the order against signature. A certified copy of the order can be handed over to the employee at the request of the employee.

By general rules The day of termination of the employment contract is always the last day of work of the employee, with the exception of cases where the employee did not actually work, but retained his place of work.

On the day of termination of the employment contract, the employer is obliged to:

issue the employee with a work book (if the employee is not at work on the day of dismissal, then he is sent a notice of the need to pick up the work book or agree to have it sent by mail);
make a settlement with it in accordance with;
upon written request of the employee, issue certified copies of documents related to work.

An entry in the work book about the basis and reason for termination of the employment contract is made in strict accordance with the wording of the Labor Code or other federal law, with reference to the relevant article, part of the article, paragraph of the article.

There has long been a dispute among HR specialists regarding which wording to use: “the employee is fired,” “the employment contract is terminated,” or “the employment contract is terminated”? The Labor Code does not give a clear answer to this question, so employers often choose the wording at their own discretion.

Grounds for dismissing an employee

1. Dismissal during the probationary period

The establishment of a probationary period when hiring is regulated by Art. 70 TK. It provides a list of employees for whom a probationary period is not established:

persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
pregnant women and women with children under the age of one and a half years;
persons under 18 years of age;
persons who have received secondary vocational education or higher education according to those with state accreditation educational programs and for the first time entering work in the acquired specialty within one year from the date of receipt vocational education appropriate level;
persons elected to an elective position for paid work;
persons invited to work by way of transfer from another employer as agreed between the employers;
persons concluding an employment contract for a period of up to two months;
other persons in cases provided for by the Labor Code, other federal laws, collective agreement.

The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.

During the probationary period, personnel officers must record any deviations in the work of the new employee using memos and reports. When the probationary period ends and the employer evaluates the newcomer’s performance as unsatisfactory, he must document the validity of his decision.

The employer may terminate the employment contract before the expiration of the trial period if the result is unsatisfactory, but he will need to notify the employee in writing (in notification format) no later than three days in advance, indicating the reasons that served as the basis for making such a decision. At the same time, you need to be prepared for the fact that the employee has the right to appeal this decision in court.

If an employee refuses to sign a notice, a corresponding act is drawn up, which records the fact that the employee has read the notice and refused to sign it. Based on the notification, order T-8 is issued to terminate the employment contract. If an employee refuses to sign an order, then at the bottom of the order the personnel officer writes by hand that the employee was familiar with the order, but refused to sign, or a corresponding act is drawn up. In any case, it is important to record the fact that the employee has read the order.

Terminate the employment contract at your own request probationary period maybe an employee. To do this, he needs to submit an application, but he does not have to indicate the reason for dismissal. The notice period in this case, according to Art. 71 TK, will be three calendar days. The dismissal itself is made on the basis of (termination of the employment contract at the initiative of the employee).

2. Dismissal at your own request

Which article of the Labor Code should you refer to: .

An employee has the right to terminate an employment contract at his own request, but he must notify the employer in writing no later than two weeks in advance, unless a different period is established by the Labor Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter. By agreement of the parties, this period may be reduced.

In cases where dismissal at the initiative of the employee is due to the impossibility of continuing his work, the date of dismissal can be set independently. In Art. 80 of the Labor Code contains grounds when this option is possible: enrollment in educational institution, retirement, established violation of labor laws by the employer, etc. Practice labor relations shows that there are many more reasons to reduce notice periods. For example, an illness that prevents the continuation of this work, provided there is an appropriate medical certificate; moving to another area ().

The list of valid reasons for dismissal on the day the application is submitted can be enshrined in the internal labor regulations of the organization or in the collective agreement.

Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with the Labor Code and other federal laws, cannot be denied an employment contract. For example, in Art. 64 of the Labor Code states that it is prohibited to refuse to conclude an employment contract to employees invited in writing to work as a transfer from another employer.

Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer must:

issue a work book to the employee;
issue other work-related documents upon written request from the employee;
make a settlement with him.

How to prepare documents?

When an employee has the right to reduce the notice period, he writes a dismissal date, which is binding on the employer, that is, he cannot unilaterally change this date on his own. Sometimes an employee is not entitled to benefits, but asks to be fired early. For example, he writes a statement on May 15, and asks to fire him on May 19. In this case, the employer can act under Art. 80 TK. If he agrees to dismiss earlier, he accepts the application and issues an order. If he does not agree, he draws up a notice for the employee, in which he explains that he cannot accept such a statement on the basis of Art. 80, which requires two weeks notice and asks to write a new application.

Based on the order, an entry is made in the work book (this is done on the last day before the book is issued, so that the employee immediately signs in the book for recording the movement of work books).

3. Dismissal by agreement of the parties

Which article of the Labor Code should you refer to: .

The basis for dismissal “by agreement of the parties” was included in the Labor Code in 2006, and Art. 78 of the Labor Code, which is devoted to this issue, contains only one sentence: “An employment contract can be terminated at any time by agreement of the parties to the employment contract.” No matter how such a basis for dismissal is perceived, one must proceed, first of all, from the fact that the word “agreement” itself indicates a peaceful basis for termination of the employment relationship.

Despite the fact that the agreement is not provided for by the Labor Code, it is very important document, since it specifies the conditions under which the parties terminate the employment relationship.

4. Dismissal due to expiration of the employment contract

Which article of the Labor Code should you refer to: .

The grounds on which a fixed-term employment contract is concluded are stated in. Most often - for the duration of the duties of an absent employee, who retains his place of work.

If a fixed-term employment contract is concluded with an employee, then the expiration date of the employment contract is associated with a specific date, which is specified in the contract itself. Three days before this date, the employer is obliged to warn the employee about the expiration of the period by means of a notice.

Sometimes the expiration date of an employment contract cannot be established in advance; in this case, the contract does not indicate the expiration date, but a condition. In this case, there is no need to notify about the termination of the employment contract, since the very fact of the main employee returning to work means the termination of the employment contract of the employee who replaced him.

In Art. 193 of the Labor Code states how to formalize a disciplinary sanction. The employer's action algorithm in this case is quite clear. First of all, when a disciplinary violation is discovered, an act is drawn up, which records the fact of the violation, all the circumstances under which it was discovered, the date, and witnesses. Then the employee is required written explanation(the deadline for submitting the document is two working days). Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. If there is or is no explanation, the employer makes a decision based on its assessment of the employee’s actions.

The timing of the application of the penalty must be taken into account - no later than one 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.

A report on the commission of a disciplinary offense is sent to the director (the person who can make decisions on this issue). And the employee is given a notice against signature with a requirement to provide a written explanation. If he does not provide it, then an act is drawn up.

If misconduct is proven, disciplinary action is taken. In case of “mild” violations, the employee is first reprimanded. At the same time, the order to apply a disciplinary sanction contains links to all documents that confirm the grounds for applying the sanction.

7. Dismissal of a long-term absent employee

The legislation does not provide clear tools for formalizing such dismissals. Problems often arise because the employer does not know how to treat a person's prolonged absence from work if there is no information about the reasons for this absence. At the same time, he does not have the right to dismiss an employee until a violation of labor legislation is established.

Registration of such a situation begins with drawing up an act for each working day stating that the person is absent from work for an unknown reason (in the first act the time of absence is indicated “from ... to”, and in the rest - “during the entire working day”).

Acts on the absence of an employee should first be drawn up daily, in case of long-term absence - as of the day of submission of the next time sheet.

Letters are sent to the employee with a request to provide an explanation of the reasons for non-appearance (they must be sent by registered mail with a list of attachments).

In case more than a year there is no news from the missing employee, the employer, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and Chapter 31 of the Code of Civil Procedure of the Russian Federation, may, through the court, recognize the missing employee as missing. According to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested parties, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. If the court satisfies the stated requirements to recognize the missing employee as missing, the employer will be able to terminate the employment contract with this employee under clause 6 of Part 1 of Art. 83 Labor Code of the Russian Federation.

Subscribe to our channel on Telegram to find out about all the most important changes that concern business!

The issue of dismissal from work is acute for everyone and becomes a problem not only for the employee, but also for the employer. How and why can I fire an employee? Which articles of labor legislation can and should I refer? And what are the most common reasons for dismissals does the employer use?

President of the European Coaching Association (ECA) Konstantin Chamber told which employees are at the top of the list for dismissal.

You often go on sick leave. Constantly ask permission to take work home due to illness. In the meantime, you are in forced downtime, or someone is working for you, without any salary increases, or things are lying dead weight.

Such an employee first causes irritation, and then an outright desire to shed ballast. Of course, such behavior does not fall under the article of the Labor Code, but the employer will always be able to make you an offer to resign on your own in such a way that you cannot refuse.

In second place are chronic violators of discipline who are late for work, planning meetings and meetings. Another reason is the employee’s reluctance to improve their skill level. The employer benefits from the employee who brings more profit. Therefore, preference is given to candidates who want to develop and study.

“If you have become a potential candidate for dismissal, then you need to understand in time, firstly, how you can be fired, secondly, within what time frame, and thirdly, with what consequences for you. You can be fired quickly and without paying any - or compensation if your employment contract allows it or if you work for people whose upsetting is fundamentally not in your interests. If you are employed in accordance with the rules of a modern contract, then spontaneous dismissal without compensation is possible only in extremely difficult cases. cases involving gross violations of the law,” comments Constantin Chamber, President of the European Coaching Association (ECA) in China.

How and under what article does dismissal occur?

Any dismissal, in principle, occurs under one or another article of the Labor Code of the Russian Federation, but some articles of the Labor Code may negatively affect the further employment of the employee. In Article 81 of the Labor Code clearly defined reasons why an employer can fire an employee.

Paragraph 4 of this article states that the manager, his deputies and the chief accountant can be fired when the owner of the organization changes. In this situation, only the above-mentioned persons can be fired. The new owner does not have the right to fire ordinary employees under this article.

When an organization is liquidated, everyone is subject to dismissal, this will even affect pregnant women and young mothers.

When downsizing or downsizing, there are several groups of people who have the exclusive right not to lose their jobs. These people include breadwinners and people with long, uninterrupted work experience at a given enterprise, institution, or organization.

Inconsistency...

Another reason for dismissal is specified in paragraph 3 of Art. 81 of the Labor Code: “Inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by certification results.”

To identify the incompetence of an employee, a special certification commission must be created, which, as a rule, includes the deputy director of the organization, a representative of the personnel department and the immediate supervisor of the subject. A special order is issued regarding its implementation. The subject is given a task that does not go beyond the scope of the job description corresponding to his position. Even if the members of the commission somehow agree among themselves and the task may be obviously impossible to complete, for example, in terms of deadlines, you can write a complaint to the labor inspectorate and challenge the results of the certification in court. A final report is drawn up on the results of the certification.

Dismissal is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer. It could be like vacant position or a job corresponding to the employee’s qualifications, as well as a vacant lower position or lower paid job that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
If the employee refuses in writing all offers made to him, the employer may fire him.

Failure to comply...

An employee can also be fired for failure to perform official duties. So, according to paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, the reason for dismissal may be “Repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction.”

The employee’s failure to comply must be repeated and without good reason. Moreover, the employee must already have been subject to disciplinary action.

According to Article 192 of the Labor Code of the Russian Federation, a disciplinary act is the failure or improper performance by an employee, through his fault, of the labor duties assigned to him. Disciplinary action is allowed only in the form of:

comments;
reprimand;
dismissal for appropriate reasons.

To dismiss an employee on the basis of clause 5 of Art. 81 of the Labor Code of the Russian Federation, failure to fulfill labor duties must be:

a) repeated;

b) without good reason.

If there are valid reasons, the employee must put them in writing. And at the same time, the employee must already have a disciplinary sanction formalized accordingly.

Ivanov, late again!

Another reason for dismissal, as stated in paragraph 6 of Art. 81 of the Labor Code of the Russian Federation is “Single gross violation of labor duties by an employee.”

Absenteeism is considered absence from the workplace without good reason during the entire working day (shift), regardless of its duration. The most important valid reason is sick leave. If after returning to work you do not provide sick leave, then the employer may give you absenteeism.

If you had other extenuating circumstances, they must be stated in writing. Management decides how valid your reasons are.

If you need to be absent from work, write a statement in two copies, on which your management puts its “I do not object” resolution, date and signature. The first copy is with your superiors, keep the second one with you.

It's different when you're late.. “A single gross violation is also considered absence from the workplace without good reason for more than four hours in a row during a working day (shift).” That is, if you are an hour late for work, you cannot be fired on this point. However, for repeated lateness, a disciplinary sanction can be imposed and subsequently dismissed under clause 5 of Art. 81, as for repeated failure by an employee to fulfill his work duties without good reason.

Theft and embezzlement

Perhaps the most indisputable reason for dismissals is contained in subparagraph D, paragraph 6 of Art. 81 of the Labor Code of the Russian Federation “Committing theft (including small) of someone else’s property at the place of work, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of a judge, body, official authorized to consider cases of administrative offenses.”

It is already clear from the text of the law that in order to dismiss an employee on this basis, a court decision or a resolution of an authorized official is necessary, i.e., an investigation must be conducted. However, in practice, an employee may be asked to leave quietly “of his own free will” so as not to make a fuss, which in various circumstances can affect both the reputation of the employee himself (even if he is not guilty of anything) and the reputation of the organization itself. And here the choice is yours.

Unsuitability

Professional incompetence is a lack of conformity professional qualities employee of the position held. In other words, if an employee cannot cope with his duties, or copes below the established average level, such an employee may be professionally unsuitable for this position. What to do if you were fired for incompetence?

Be careful!

In fact, there are many more reasons for dismissing an employee than those listed above. Full list The grounds for dismissal contain Art. 81 of the Labor Code, which you need to know by heart.

The Labor Code also provides that termination of an employment contract at the initiative of the employer may occur in other cases provided for in the employment contract with the head of the organization and members of the collegial executive body of the organization. And in each case, checks must be carried out to determine the legality of your dismissal. Thus, before signing an employment contract, carefully study it so as not to get unexpected “surprises”.

What is written with a pen...

What to do if, in your opinion, there is an illegal entry in the labor record? According to Art. 394 of the Labor Code of the Russian Federation, in cases of dismissal without legal basis, or in violation of the established procedure for dismissal, or illegal transfer to another job, the court, at the request of the employee, may make a decision to recover in favor of the employee monetary compensation for moral damage caused to him by these actions.

Moreover, if the court finds the dismissal illegal, the employee has the right to ask the court to change the wording of the grounds for dismissal to dismissal at his own request. In accordance with clause 33 of the Rules for maintaining and storing work books, production of forms work book and providing them to employers approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225, if there is an entry in the work book about dismissal or transfer to another job that is declared invalid, the employee, upon his written application, is issued a duplicate work book according to last place work, into which all entries made in the work book are transferred, with the exception of entries declared invalid.

Subscribe to the "site" channels in T amTam or join in

You will need

- labor code RF;
- consultation with an experienced personnel officer;
- labor inspection;
- reports on work, testimonies of colleagues.

Instructions

First, you need to figure out how a dismissal can be formalized. The wording, laws, articles are different, and there are nuances. So, you can be fired “by”, “by agreement of the parties”, “in connection with staff reduction”, “in connection with the liquidation of the enterprise”, “under Article 81 of the Labor Code”. Each of these cases has its own subtleties.

If you are offered to resign at will, the employer expects to get rid of you little blood, that is, not paying you what you are owed. “Dismissal at will” is a formulation that suits all employers without exception. Of course, they pay exactly as much as you work when you quit. If the employee does not want to sign the statement, he may be offered “dismissal under the article.”

If you intend to, offer the employer dismissal “by agreement of the parties” and write down your terms in the agreement. In the conversation, you can hint that you know how difficult it is to fire a person “under the article”, and what strong evidence your employer must have. Great if you relate to preferential category citizens: you are pregnant, raising a child alone, or if you - mother of many children. Then it is almost impossible to fire you.

If the employer does not agree to these conditions, you should remember whether there were any violations or miscalculations in your work history over the last month or two. What to look for special attention: you must not be late, your absence must be documented accordingly, and your performance of duties must strictly comply with the employment contract you signed. Do not sign papers without looking; when going on a business trip, get a travel certificate.

If you are fired due to staff reduction (clause 2 of Article 81 of the Labor Code of the Russian Federation), then you have nothing to worry about. Your employer is obliged to warn you about dismissal in advance, offer you another job, identify beneficiaries, report it to the employment service and pay you severance pay in the amount of several salaries upon dismissal.

If you are liquidated by an enterprise, you must also be notified of this no later than 2 months before dismissal. You have every right to resign early, having received your salary for these same 2 months in your pocket.

The most pleasant way for you is dismissal by agreement of the parties. Dismissal by agreement of the parties occurs in accordance with Article 77 of the Labor Code of the Russian Federation, paragraph 1. Upon dismissal, you receive monetary compensation. The amount of this compensation will be limited by your mutual agreement with your employer. A written agreement is concluded that states when you will be fired and what monetary compensation you can receive.

If you are threatened with dismissal under Article 81 of the Labor Code of the Russian Federation, do not be alarmed ahead of time. You can be fired if the owner of the enterprise changes (Article 81, paragraph 4) if you are the general director, deputy or chief accountant. You may be fired for inadequacy for the position held (Article 81, paragraph 3). Then they should assemble an attestation commission for you, which will come up with a test task for you. Even if you fail to cope with it, they cannot fire you right away. You should be offered another position in this organization.

If you are threatened with dismissal under clause 5 of Article 81 of the Labor Code of the Russian Federation, then you regularly do not fulfill your job duties. Remember, in order for you to be considered, violations must be regular and without good reason. In addition, you must have formal disciplinary action.

You may also be threatened with dismissal or being late under paragraph 6 of Article 81 of the Labor Code of the Russian Federation. But this is only possible if you did not provide any documents explaining why you were absent. It is also not recommended to be late regularly, but no one can fire you for one delay of less than 4 hours. More exotic articles under which you can be fired are “Theft and Embezzlement” and “Loss of Trust.” They are associated with documented violations of financially responsible persons or with violations committed under the influence of alcohol or drugs.

Even if you do get fired, you have every right to continue to fight. Within a month from the date of dismissal, you can sue your employer. You also need to contact the labor inspectorate and make sure that upon dismissal you receive a work book with a record of dismissal, a dismissal order and orders to impose penalties (if any).

Please note

1. If you do not come to work, be sure to confirm the validity of the reason for your absence.

2. Read your employment contract and job descriptions again.

3. Don't be afraid to stand up for your rights.

Useful advice

If you feel that clouds are gathering, document every step and decision you take.
- Avoid disciplinary action.
- Avoid being late.

Sources:

How to competently fire an employee?

Not a single employee, even an experienced, conscientious and skillful one, is immune from dismissal. This can happen for a number of reasons. One way or another, you must know your rights and use them if the manager neglects the law.

The simplest option is if you yourself are already wondering whether to change your boring job. In this case, write a letter of resignation of your own free will, calmly complete the required two weeks, without conflicting with management or former (now) colleagues, and receive a work book.

More difficult situation: Your boss has suggested that you resign of your own free will, but you don’t want to give up this job. This is where you need to act taking into account all the circumstances. First of all, try to clearly understand why the manager decided that the organization no longer needs your services. Maybe the company is going through difficult times right now, staff reductions are underway, and you are far from the only candidate? Then the manager’s logic is clear: if a person is fired with the wording for staff reduction, then he should be paid the benefits provided by law, but if at his own request, then he should not be paid. Politely but firmly refuse.

Remember that from now on you must behave with extreme caution so as not to give rise to dismissal for violation of labor discipline. Do not be late for work and do not leave before the end of the working day. If you need to take time off, write the application in duplicate, date it, sign it, and make sure that the manager not only makes a note “I don’t object,” but also signs it. Be sure to keep the second copy for yourself. Try to fulfill your official duties conscientiously and fully.

If, despite this, an order was issued for your dismissal with the wording “For a one-time gross violation of labor discipline” or “For systematic violations of labor discipline,” do not despair. According to the law, within a month from the date of the dismissal order, you have the right to file a claim with the court at the place of registration of the defendant (that is, your former organization). Demand reinstatement to your previous position and compensation for forced absence. TO statement of claim attach copies of all necessary documents: orders for the imposition of penalties, a work record book and an order for your dismissal. If you are not experienced in law, be sure to use the help of a qualified lawyer, who also specializes in labor disputes.

Video on the topic

Document	Will help you
Articles 39, 71, 75, 81, 261, 269, 336, 373, 374, 405 of the Labor Code of the Russian Federation	Clarify the grounds on which an employer can dismiss an employee on his own initiative, as well as find out about exceptions to this rule
Resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”	Resolve complex issues that arise when an employee is dismissed at the initiative of the employer

The employer dismisses you under the article. Not of your own free will: why you can be fired

Misconduct for which you can be dismissed under the article

Conditions required for dismissal

Procedure for imposing disciplinary sanctions

Case Study

Is it possible to fire an employee if he is on sick leave to care for a sick family member? - Yes, you can.

Is it possible to dismiss a minor employee at the initiative of the employer? – It is possible, but only with the consent of the labor inspectorate.

Is it possible to fire an employee for absenteeism if his employment contract does not indicate a specific place of work? - No, you can’t.

When can an employer not fire an employee?

Restrictions upon dismissal special categories workers

What to do if you are faced with a difficult dismissal case?

Related documents

Law against practice

Grounds for dismissing an employee

1. Dismissal during the probationary period

2. Dismissal at your own request

3. Dismissal by agreement of the parties

4. Dismissal due to expiration of the employment contract

7. Dismissal of a long-term absent employee

How and under what article does dismissal occur?

Inconsistency...

Failure to comply...

Theft and embezzlement

Unsuitability

Be careful!

Related articles

Read also