Violation of labor discipline ST 81 Paragraph 6. Violation of labor discipline under the Labor Code of the Russian Federation: consequences for an employee. These include

31.08.2019

Decoration of dismissal

Violation of labor discipline must be considered taking into account all the factors that led to the perfect act under Article 192 of the Labor Code of the Russian Federation.

If there is no doubt that the employee is guilty, the employer pays an order for the design of the necessary documents in the personnel department, then in accounting signs and impose a penalty.

Required documents

In order for the employer to be able to impose on the guilty employee who made a gross disorder of discipline, recovery, the rules of procedure must be followed:

According to the law, it is impossible to punish the employee twice for the same gross violation.

In the right of the employee, the possibility of appealing the recovery in court, in the State Labor Inspection.

After dismissal is made. The book prescribe the appropriate article to apply disciplinary recovery and record.

conclusions

An employee of the enterprise, just settled on the enterprise, should become familiar with his labor duties. Also, each organization has its own labor regulations and the provision on the application of recovery.

In most cases, dismissal is held in connection with the own desire of an employee or agreement of the parties.

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However, in some situations, the initiator in this process can also be. These include dismissal for violation of work discipline. But in order for this to become possible, good reasons are needed.

Basis

Legislation allows the employer to unilaterally terminate the employment contract with the employee.

The main condition for this is the presence of grounds supported by evidence.

So, the following actions of the employee can serve as the cause for dismissal in this form:

crimes committed within the enterprise;
applying property damage company;
finding intoxicated in the workplace;
one-time or systematic violation of the conditions of employment contract;
disclosure of commercial secrecy;
obscene behavior during operation;
Or the absence of more than three hours in a row during working hours.

Also, dismissal may occur if disciplinary penalties have already been carried out towards the employee, and it was warned about dismissal.

In cases where the employee violates the discipline, the employer is obliged to fix it in the form of an act.

Such a document is drawn up in two copies, one of which must be transferred to the employee. Also, with its preparation, witnesses should be present.

Law

Like other reasons for dismissal, termination on the basis of the disorder of the discipline by the employee is governed by the Labor Code of the Russian Federation.

In this situation, the main document must be taken.

It describes in detail the situations in which the employer remains the right to dismiss the employee.

Dismissal for violation of labor discipline

Dismissal for violation of labor discipline can be carried out in different ways, it all depends on many factors.

These include the severity of disorders and their number (if any).

Repeated (systematic)

Termination of the employment contract can not be done immediately. With minor violations, the employee still has a chance to stay in its place.

However, if the deeds begin to wear a systematic character - then the employer has the right to make dismissal for a repeated impairment of labor discipline.

At the same time, if there is a good relationship between the parties - the employer can manifest the initiative in drawing up agreement.

In this case, he will be able to dismiss the employee with certain conditions, without spoiling his workbook.

Rude

If there is a gross violation, the dismissal should be immediately. In this case, the employer has the right to terminate the treaty urgently. This means that the employee can be dismissed without working.

Conducting such a process takes only a few days.

Disciplinary recovery

As already mentioned earlier, with minor violations, an employee can stay at his workplace. The fact is that dismissal is not the only way to punish and is considered the highest measure.

The smallest harm to the employee can bring less radical disciplinary recovery.

These include reprimands and comments. Like dismissal, other types of penalties can only be superimposed by the head of the organization.

He is entitled to demand a violator of the drawing note, which should contain an explanation of the employee's act.

During the appointment of punishment, the employer must clarify the severity of the act committed by the employee.

It is also necessary to specify the attitude of the employee to his duties and the circumstances under which the incident occurred.

Order order

Before proceeding with an employee, the employer is obliged to collect all the necessary documents, the list of which is a service investigation, as well as explanatory from the employee itself. After that, the process itself can be started.

His move is somewhat different from the usual scheme:

You must compile a written notice of dismissal, which should be directed to the employee in order to inform him.
Further is compiled, the basis for which the paper will serve that proving the presence of a violation.
Preparation for the day of dismissal is carried out: papers are collected, records are made to the employment book, payments are calculated.
The process is completed on the day of dismissal, when the worker receives documents and put the employment contract after this after this is considered officially terminated.

Documentation

When dismissal due to disruptive discipline, the documents issued during this process play a considerable role. With their improper compilation, the employee may have a chance to submit a lawsuit to court in order to cancel the decision of the leadership.

Some of the necessary papers must be drawn up before the termination of the contract. Usually they are made during a service investigation.

During the very process of dismissal, the order and labor book are the greatest importance.

Order

To compile an order of dismissal, there is a unified form "T-8".

There is also its analogue to terminate the contract at once with several employees - "T-8A". However, the latter in cases of dismissal due to violations is extremely rare.

Correctly compiled document should include:

data on the organization;
the date of compilation and its own number;
information about the employee;
dates of the conclusion and end of the employment contract;
grounds for dismissal and the item corresponding to them;
footnotes on documents confirming violation;
signatures from both sides of the incident.

Recording in the employment record

An important aspect is the employee who contributes to the employment record. Its content must fully comply with what is indicated in the order in the form of the base. Also in it should be an identical article.

To assign the record, a round printing of the company and the signature of the person who contributed to the employment record will be used.

In addition to the recording itself, the document must stand the number when it was issued, corresponding to the day of dismissal.

An employee must familiarize himself with the content of the entered data, and with agreement with them to put its signature.

Payments

Despite the fact that the dismissal is considered the highest measure of disciplinary penalties, if it is committed, the employer is still obliged to provide employee to payments.

These include:

the full amount of wages for spent days from the moment the last accrual;
For unused vacation days.

In 2019, the employer has no right to deprive the employee of its payments, even if damage to the organization. However, the law does not prohibit him to apply to the court with a claim for compensation for harm.

Arbitrage practice

It is possible to file a claim after the employee's dismissal, but in this case, as evidence, it is necessary to provide papers on which a violation was recorded.

In accordance with paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the employment contract may be terminated by the employer in the case of repeated non-fulfillment by the employee without valid causes of labor duties, if it has a disciplinary penalty.

This basis is quite often used in practice by many employers, regardless of the form of ownership and work of the enterprise.

An analysis of judicial practice shows that in most cases, employees do not agree with the foundation itself applied by the employer for parting with them, nor with a qualification by the employer of their actions / inaction as "the failure of labor duties."

In this article, we propose to familiarize yourself with the state of judicial practice that has developed in the field of labor disputes arising from the layoffs on the basis of the foundation - paragraph 5 of Part 1 of Art. 81 TK RF. At the same time, on the basis of the analysis of cases in which the employee successfully managed to challenge his dismissal, recognize him to illegal and obtain a court decision on recovery at work (or changing the wording and the date of dismissal), we will identify those employer errors who served as the basis for such a turning of events Not in favor of the employer.

1. Errors in the area of \u200b\u200borders for punishment and dismissal

Demand: When making an order for punishment (including in the form of dismissal), the order should indicate:
- for which the employee is punished, that is, for what a specific act, behavior, action / inaction;
- What provisions the requirement of the employee's behavior algorithm is fixed. That is, references should be given to items of specific local acts, job descriptions, rules, orders, etc., which the employee violated his act.
In addition, the dismissal should be a commensurate measure of punishment for the proshahm admitted by the employee.
from Art. 192 of the Labor Code of the Russian Federation it follows that under a disciplinary misconductor should be understood as the guilty, unlawful non-fulfillment or improper execution by the employee of labor duties assigned to him (violation of the requirements of legislation, obligations under the employment contract, the rules of the internal labor regulation, job descriptions, regulations, orders of the employer, etc. .). In the absence of at least one of these conditions, the use of disciplinary recovery to the employee is unlawful.
According to Art. 192 TK RF Employer has the right to apply the following disciplinary penalties:
1) Note;
2) reprimand;
3) dismissal on appropriate grounds.
Disciplinary recovery, in particular, refers to the dismissal of the employee under the grounds provided for by paragraph 5 of Part 1 of Art. 81 TK RF. The procedure for applying disciplinary penalties is regulated by Art. 193 TK RF.
Plenum of the Supreme Court of the Russian Federation in the decision of 17.03.2004 N 2 "On application by the courts of the Russian Federation of the Russian Federation" (hereinafter referred to as the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2) explained that the employer must comply with such principles such as justice when applied to the employee of disciplinary recovery , equality, proportionality, legality, wine, humanism. The employer must provide evidence testifying not only that the worker made disciplinary misconduct, but also that when imposing the severity, the severity of this misconduct and the circumstances under which it was perfect, as well as the preceding behavior of the employee, his attitude towards work was taken into account.

Practice :
Bank employee was fired byp. 5 h. 1 Art. 81 TK RF (repeated non-fulfillmentan employee without valid causes of labor duties, if it has a disciplinary penalty).Attraction to disciplinary responsibility and dismissal, she considered illegal and appealed to the court. The court recognized both order (about reprimanding, and dismissal) illegal, a worker restored at work. The main reason for the recognition of orders was illegal was that the employer did not bother in the orders themselves to indicate specific norms of local acts of the employer who were violated by a worker. That is, the whole thing that the employer then pointed out his response to the lawsuit. In addition, the court found that the female worker was not familiar with the full text of local acts, the norms of which she actually violated. According to the claimant's email represented, the employer was invited to familiarize himself with the employee only with chapters 17 and 18 of the order, which she subsequently broke. Despite the fact that the court during the consideration of the case established the facts of violation by a worker of the norms and rules operating in the bank, he still recognized the orders for the punishments of workers illegal - due to the violation of the rules for registration of such documents. (Decision of the Kirovsky District Court of Irkutsk from 04.10.2013; the appellate definition of the Irkutsk Regional Court of 12.12.2013 in case No. 10173/2013).

Output: If the order of dismissal is not set out the circumstances of the disciplinary misconduct, there are no specific provisions of job descriptions, orders, local acts of the employer who were guilty of the employee in the execution of employment duties, and from the order of dismissal, it is impossible to see which particular violation of the work discipline is allowed. An employee, such orders cannot be recognized as legitimate.

2. Sequence errors: no "repeatedness"

Demand: To apply the base, there should be at least one more applied and decorated the punishment of the same employee. That is, there must be a valid and not canceled order of punishment for the previously perfect misconduct.
Source and interpretation Requirements: The requirement follows from the meaning of the very base for dismissal, that is, paragraph 5 of Part 1 of Art. 81 TK RF. In accordance with the explanations contained in paragraph 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation N 2, in resolving disputes of persons dismissed according to paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment without valid causes of labor duties, it should be borne in mind that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary penalty was previously applied to the employee, and at the time of re-non-fulfillment of them without valid causes of labor duties, it was not removed and was not redeemned.In the sense of the given explanations, the dismissal of the employee under the above ground is allowed in cases where the employee, having a disciplinary penalty (penalties), performs a new disciplinary misconduct or continues the violation that has begun before applying. Thus, with repeated non-effectiveness of labor duties, the employer has the right to terminate the employment contract only if he previously applied disciplinary recovery to the employee who were not discontinued.

Practice:
Worker dismissed according to paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, appealed to the court with a claim for the recognition of all orders (about punishment and dismissal) illegal. As the court established, the plaintiff worked in the defendant's transport department as a car driver. In the first order, he was attracted to disciplinary responsibility in the form of comments, as indicated in the order, in connection with the negligence attitude to official duties. The second order of the employer the plaintiff was attracted to disciplinary responsibility in the form of a violation for violation of paragraph 4.1.4 of the employment contract, expressed in refusal to execute the order of the employer. The third order of the plaintiff was subjected to disciplinary recovery in the form of dismissal. The reason for the use of punishment was the failure to fulfill its official duties, namely the order of the Director General. The court found that the plaintiff earlier, before applying to the court, he applied to the State Labor Inspectorate, which, according to the results of the respondent, an order was made with the requirement of the abolition of orders No. 1 and 2. In fulfillment of the prescription by the employer of the plaintiff in voluntarily, orders No. 1 and 2 (about comment and reprimand). Deciding on the refusal to satisfy the claims of the employee about the abolition of orders No. 1 and 2, the court proceeded from the fact that these orders challenged by the plaintiff at the time of consideration by the court voluntarily canceled by the employer. Since in connection with the cancellation of these orders, the plaintiff's labor rights in this part were restored, the grounds for re-canceling orders from the court was not available. Satisfying the claimant's claims on the abolition of orders to apply disciplinary recovery in the form of dismissal and order to terminate the employment contract with an employee (dismissal) of the plaintiff, the court reasonably concluded that there are no legal grounds for the dismissant of paragraph 5 of Part 1 of Art. 81 TK RF. In connection with the abolition of the employer of orders No. 1 and 2, in the opinion of the court, there was no sign of repeatedness of non-fulfillment by an employee without a valid cause of labor duties and the presence of unreasted disciplinary penalties, which in turn leads to the abolition of orders for dismissal. The worker was restored at work in the previous position (decision of the Millerous District Court of the Rostov Region dated 21.05.2013; the appellate definition of the Rostov Regional Court of 01.08.2013 in case No. 33-9646 / 2013).

Output: If the employer voluntarily canceled the orders to bring to disciplinary responsibility, which in turn created repeatedness of the employee's failure to fulfill without a valid cause of labor duties and the presence of unnoticed disciplinary recovers, then the abolition and order of dismissal under paragraph 5 of Part 1 of Article. 81 TK RF.

3. Action errors: violation of the procedure for bringing to disciplinary responsibility

Demand: Before applying the recovery, the employer is obliged to claim an explanation on the fact of misconduct, giving him two full days for this.
Source and interpretation Requirements: In accordance with the first and second part of Article 193 of the Labor Code of the Russian Federation before the use of disciplinary recovery, the employer must request a written explanation from the employee. If after two working days the specified explanation by the employee is not provided, then the corresponding act is drawn up. Failure to submit an explanation worker is not an obstacle to the use of disciplinary recovery.
If the question of applied to the employee of disciplinary recovery is solved before the expiration of two working days after the written explanation has been requested, the procedure for the use of disciplinary recovery in the form of dismissal is considered violated, and dismissal by virtue of Part 1 of Art. 394 TC RF -Nozanny.
A other interpretation of these norms would mean the option of compliance with the employer for the provision of an employee of the explanation and the ability to ignore the employer of the requirements of Part 1 of Art. 193 of the Labor Code of the Russian Federation, and therefore would lead to the loss of the meaning of these rules and a significant violation of the right of an employee for the provision of an explanation in the period established by law.

Practice:
The official of the chief composition of the institution in the field of education was dismissed at the initiative of the employer. The basis for terminating the employment contract with him was the letters of the Ministry of Education and Science, according to which the management of the district was prescribed to release him from their duties due to the violations of the examination of the exam in the area. The dismissed worker did not agree with such a dismissal, considering it illegal due to the lack of ground and violation of the dismissal procedure. The court, having studied the submitted letter of the Ministry of Education and Science, came to the conclusion that the defendant is not provided by evidence indicating the presence of grounds for the imposition of disciplinary recovery in the form of dismissal. The defendant did not submit to the court of evidence that the plaintiff did not fulfill or improperly fulfilled his job duties, and which duties are. In addition, the wording is at the disposal - "For numerous violations made in the conduct of the EGE" - as one of the grounds for the dismissal of the plaintiff, the court is correctly recognized as unreasonable, since it is generally not confirmed by anything, that is, such evidence is not presented by the defendant . In addition, as can be seen from the materials of the case, the employer applied to the plaintiff disciplinary recovery in the form of dismissal without claiming explanation, which is a violation of the requirements of Art. 193 TK RF. In addition, the layout of the dismissal was issued during the position of the claimant on vacation, which indicates a direct violation of the norms of labor legislation (part 6 of Art. 81 of the Labor Code of the Russian Federation). Based on the above, the court recognized the dismissal of illegal, and the employee at work restored (decision of the Kaitagsky District Court of the Republic of Dagestan dated August 26, 2013; the appeal definition of the Supreme Court of the Republic of Dagestan dated November 19, 2013 in case No. 33-4068 / 2013).

Output: Violation of the procedure for attracting an employee to disciplinary liability (for example, the intimidation of explanations on the fact of disruption of discipline), as well as failure to comply with the requirements of Part 6 of Art. 81 of the Labor Code of the Russian Federation on the ban on the dismissal of the employee at the initiative of the employer during his leave or illness, is the basis for recognizing the dismissal of paragraph 5 of Part 1 of Art. 81 TC RF illegal.

4. Time errors: penalties

Demand: Article 193 of the Labor Code of the Russian Federation established a predictional time to attract an employee to disciplinary responsibility, making an order for punishment (dismissal) to familiarize the employee with the order. In addition, a period has been established during which the employee is considered to be subjected to disciplinary recovery - one year.
Source and interpretation Requirements: According to Part 3 and 4 Art. 193 of the Labor Code of the Russian Federation Disciplinary recovery applies no later than one month from the date of the discovery of the offense, not counting the time of the employee's illness, staying on vacation, as well as the time required for the opinion of the representative body of workers.
Disciplinary recovery cannot be applied later than six months from the date of the misdeeding, and according to the results of the audit, testing of financial and economic activities or an audit - later than two years from the date of its commit. The time of production in the criminal case does not turn on this time.
In accordance with Art. 194 of the Labor Code of the Russian Federation if during the year the employee will not be subjected to a new disciplinary recovery during the year from the day of the use of disciplinary recovery, then it is considered not a disciplinary recovery. Employer Before the expiration of the year from the day the disciplinary action is expired, it has the right to remove it from an employee on his own initiative, the request of the employee itself, the petition of his immediate supervisor or the representative body of workers.
If the employer punished the employee outside the deadlines specified in Art. 193 of the Labor Code of the Russian Federation, or the basis of "repeatedness" required for the foundation provided for by paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, applied an order for punishment, from the date of which more than one year has passed, then the dismissal under the foundation under consideration is recognized illegal.

Practice:
Worker dismissed for repeated non-fulfillmentwithout the valid causes of labor duties, he appealed to the challenge of his dismissal. During the case, it was established that the order made in February was declared a reprimand for the failure to fulfill the July order No. 4. The deadlines for the execution of the plaintiff in July orders No. 4 of the duties were established by the same order until the end of August. Thus, it was found that the employer already in September knew about the default plaintiff entrusted to him with July orders No. 4 duties, but he punished him only in February, that is, with a delay period for imposing the recovery established by Art. 193 of the Labor Code of the Russian Federation (for punishment there is a monthly period from the day of the misdeeding detection). Given the above, the court reasonably recognized the attraction of the plaintiff to disciplinary responsibility in the form of a spontaneous. Guided by the provisions of paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, clarifications of the Plenum of the Supreme Court of the Russian Federation, the court, having established the illegality of attracting the plaintiff to disciplinary responsibility in the form of a promiguration to the February order, came to the correct conclusion that under such circumstances the plaintiff's dismissal under paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment by the employee without valid causes of labor duties, is illegal (the decision of the Railway District Court of Rostov-on-Don from 10.27.2010; the appeal definition of the Rostov Regional Court of November 29, 2010 in case No. 33- 14176).

Output: The orders for punishment can be found illegal and in connection with the delay in attracting an employee to disciplinary responsibility (later than the monthly period established by Art. 193 of the Labor Code of the Russian Federation). In this case, "repeatedness" is also lost, which is so necessary for termination of the employment contract under paragraph 5 of Part 1 of Art. 81 TK RF.

Summing up the analysis of the judicial practice of successful recovery of workers at work after the dismissal of paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, it is confidently to state that the recovery in most cases becomes possible only "thanks to" employer errors.

Any working process implies the fulfillment of certain duties and work discipline. The last concept involves a set of norms and rules of correct behavior, which are governed by existing regulatory acts from a particular employer.

basic information

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Discipline is part of the working time and process. All principles and fundamentals are governed by the Labor Code of the Russian Federation. For incorrect execution of these obligations, a penalty or other sanctions follows. Such should include dismissal or administrative punishment.

The question is regulated by paragraph 6, by the Labor Code, if the misdemeanor is not entered into the employment record. If this is non-fulfillment of responsibilities, then the article by the Labor Code of Russia is regulated.

In accordance with the current legislation, the citizen undertakes:

perform their duties at the proper level;
perform labor standards and adhere to discipline;
comply with security measures;
protect the company's property;
warning a guide if there is a threat to the lives of others.

If the employee did not fulfill at least one of the above requirements, it can be attracted to punishment. Dismissal is extremely rare, as it is considered a measure of punishment with a rough violation.

If the employer insists that it is necessary to dismiss the employee for a violation of labor discipline, then it is necessary to make an action in a correct form.

The procedure is accompanied by several stages:

initially, the employer must fix the fact of the violation. This is the most important stage and is executed only in writing. The examination is drawn up only with the help of a specially created expertise or when drawing up a protocol. The evidence base is to apply all evidence, including a video or photo confirmation;
a warning. If a citizen is considered a highly qualified employee, but he made disciplinary misconduct, the employer has the right to endure only a warning;
acquaintance. If the employer has collected the entire necessary evidence base, then the company has the right to prepare a corresponding order for recovery. Under the painting with the published order meets the employee. If it refuses it to sign, it is worth making an act in the presence of witnesses;
getting from an employee explanatory. Also considered an important procedure when conducting an investigation. If an employee is constantly late, he is obliged to provide explanatory every time.

Definitions

Dismissal for violation of work discipline is a procedure that is accompanied by certain conditions and rules.

The order is a legal domestic document, which is issued on the basis of a departure statement.

Regulatory documents are internal references that display the current position in the personnel workshop.

Legislation

Dismissal for violation of the Labor Discipline of the Labor Code of the Russian Federation. Regulatting the issue of paragraph 6, article 81 of the Labor Code, in the absence of the need to make information into labor documents. If you need to apply, then this is Art. 192 of the Labor Code of Russia.

What are the foundations for dismissal

The company has the right to dissolve labor relations with an employee unilaterally, if it has foundations. The grounds for one-sided dismissal are registered in the Labor Code of the Russian Federation.

They become:

embezzlement and theft in the walls of the organization;
damage to the property and property of the company;
immoral character;
coming to the workplace in narcotic or alcoholic intoxication;
if there is no person in the workplace for more than three hours in a row;
single or systematic non-fulfillment of labor obligations;
disclosure of personal and confidential information;
the presence of a warning worker concerned about violations of labor discipline.

Violation of discipline

Most often, the principles are regulated in the labor type contract, also describes various sanctions in non-compliance with discipline. It is punished by such an offense and dismissal, but if it is a gross violation.

The employer has the right to apply various types of punishments depending on the nature of the mistake of the mistake. All types of punishments are governed by Article 192 of the Labor Code of Russia. For example, such a person can be reprimanded, a remark, and later to dismiss.

The first situation implies a violation that is not entrusted to the Labor Document. Fixation occurs with the help of internal documents in the organization. Note or reprimand is all that threatens to a person who has made misconduct. It is often used if the employee made an action for the first time. If a re-violation is performed, more serious consequences are possible here.

In accordance with the current legislation, a person undertakes to write an explanatory within two days after the misdemeanor. The guide is a report document, where it prescribes all the circumstances of the accomplished. If a citizen disagrees with this policy, he has the right to justify his honest name, providing a sufficient evidence base.

For this it is worth providing medical documents, official letters of law enforcement agencies. It is also worth noting that a citizen has the right to apply to the court.

Recovery

Dismissal for such misconduct can be made in a different way. And each violation is accompanied by certain consequences. The definitions of gravity include the amount and damage caused.

Systematic

As a rule, the termination of the employment contract can not be made immediately. If this is a small violation, then you can leave an employee in a working place to fulfill its obligations.

If these are systematic violations, the company has the right to ask him to pay for the damage caused or carry out the process of dismissal for a repeated disruption of the employment.

It is possible to make an agreement so that the employee is dismissing not under the article. This will make it possible to not spoil the worker a labor book and get good conditions for working out.

Ground violation

If this is a gross disorder of the labor schedule, then the dismissal can follow immediately. This situation allows the company to terminate the employment contract without work.

Holding dismissal takes a few days.

Necessary documents when dismissal for violation of labor discipline

To make a decision on the dismissal of the employee, it is necessary to ensure that the management has issued:

explanatory note;
report;
act about the offense.

The act of an offense is compiled by an authorized employee only with appropriate witnesses in several copies. And already on the basis of this, all information is recorded in the order. Each employee meets documents and puts his signature.

How to make an order

If the citizen decided to dismiss, then the procedure is accompanied by the design of a specific order. In fact, the document has a unified form or. The last document is used with the mass dismissal of employees.

The order includes information:

information about the establishment. Including the name, targeted data, OKUD, OKPO;
place, number and document formation date;
information about the employee. That is, surname, name and patronymic, department, position, table number;
date of creating a work type document and ending it;
specific grounds for the dismissal procedure;
document confirmation is offense;
date and signature each of the parties.

Every person should know what time it is dismissal and refinement is wrong. According to current legislation, the employee must give clarification within two days after the commission. The process of dismissal on the basis of the offense takes place within a month.

The company should also understand that the measure of punishment is obliged to be proportional to the nature of the action. And if innocence will be proved in the judicial instance, the organization will have to restore the employee in office, as well as to pay all the necessary compensation.

Passed payments

After the dismissal of the employee, on the last day of work, the employer undertakes to pay the following payments:

salary for spent time;
all premiums that are registered in the labor, collegial contract;
compensation for unused vacation.

The above payments are mandatory to pay and are envisaged by the current legislation. That is why the employer has no right to deprive the employee of the funds presented.

But there is a slight exception to the rules. For example, recovery can due to the repayment of the damage that the employee inflicted. But this is done only if the employee's fault is documented.

On the last day, in addition to the calculation, a citizen is issued a labor book. Here the employee is introduced to the record, and it is obliged to put the signature. The record is regulated by Article 81 of the Labor Code of Russia.

Every citizen should know that if he violates his work discipline, various punishments can be made to it. That is why it should be careful and comply with all the necessary provisions. Otherwise, it can be dismissed even without working out. For this, he will be asked to write a sample application and get a calculation.

For a rough one-time violation of the employment duties, an employee can be fired on the basis of paragraph 6 of Part 1 of Art. 81 Labor Code of the Russian Federation. Moreover, it is possible to dismiss on this basis, including: women who have children under three years; lonely mothers raising a child up to 14 years old (child-disabled child under 18); Workers raising a child up to 14 years old (child-disabled child under 18) without mother. It is impossible to dismiss only a pregnant woman. This is stated in Art. 261 Labor Code of the Russian Federation.

Under single A gross violation of labor duties understand:

speed, that is, the lack of in the workplace without good reason during the entire working day (shift), regardless of its (its) duration, as well as in the absence of in the workplace without valid reasons for more than four hours in a row during the working day (shift);
the emergence of an employee at work (at its workplace or on the territory of an employer organization or an object, where, on behalf of the employer, the employee must carry out an employment function), in a state of alcoholic, narcotic or other toxic intoxication;
the disclosure of the Secrets protected by law (state, commercial, official and other), which became a famous employee in connection with the execution of labor duties, including the disclosure of personal data of another employee;
making at the place of work of theft (including small) property, waste, intentional destruction or damage established by the court who entered into legitimate force or by the decision of the judge, the authority, an authorized to consider cases of administrative offenses;
established by the Commission for Labor Protection Or Commissioner Violation by the employee of labor protection requirements, if this violation led to serious consequences (accident at work, an accident, catastrophe) or knowingly created a real threat to the onset of such consequences.

In fact, the grounds for the dismissal provided for in paragraph 5 and paragraph 6 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, something similar. After all, there and there there is some kind of violation of labor duties, carried out by workers, for which the employer subsequently applies disciplinary penalties. The difference is that, in accordance with paragraph 5 of Part 1 of Art. 81 Labor Code of the Russian Federation The employee performs at least two violations of labor discipline (that is, repeatedly), each of which is not recognized as a gross violation of labor duties. At the same time, for the first violation, an employee has already been reprimanded or a remark. And for the second re-violation there is a disciplinary penalty in the form of dismissal.

In the situation, when the termination of the employment contract occurs on the basis of paragraph 6 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the employee performs only one violation of labor duties, but it is recognized as rude. The closed list of such violations is given above. For such a locality, the employer has the right immediately (without waiting for a repeated impaired) to apply disciplinary recovery in the form of dismissal.

Consider the procedure for dismissal and features that should be taken into account on each basis separately:

Dismissal for prol.

A gross violation of labor discipline is row. At the same time, the work of labor legislation understands the absence of an employee in the workplace without valid reasons:

either during the entire working day (shift) regardless of its (its) duration;
either more than four hours in a row during the working day (shift).

Based on paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 to the absenteeism, for which the imposition of disciplinary recovery in the form of dismissal may follow:

leaving work without a valid cause of a person who has entered into an employment contract for an indefinite period, without preventing the employer to terminate the employment contract, as well as before the expiration of a two-week of warning period;
unauthorized use of the days of the seasons, as well as self-alignment care (main, optional).

But if the employer must, due to the requirements of labor legislation, provide the days of rest, but did not do this, consider the careless worker to work for a skill.

Note! It is possible to dismiss the employee in the event that it was absent at work for four hours if dinner time was in these four hours (as a rule, one hour). Such a conclusion was made by the Presidium of the Moscow City Court in the decision of August 16, 2007 in the case No. 44g-570. It noted that the lunch break cannot interrupt the term of the continuous lack of in the workplace. After all, labor legislation does not determine the working day as working time during the day before lunch and after lunch.

When terminating the employment contract on this basis, a documentary confirmation of the permanent worker is necessary. Otherwise, if the fact of the absenteeism is not confirmed, the dismissal will be recognized illegal with all the ensuing consequences.

For documentary confirmation of the fact of absenteeism:

tabel accounting table in which the corresponding mark is made. The working time accounting table in commercial organizations lead according to the unified form N T-12 or N T-13 (approved. By the decision of the State Statistics Committee of Russia of January 5, 2004 N 1). When the reason for the lack of an employee in the workplace is not known, the letter code "NN" is affixed in the table. After the belly fact is installed (that is, the employee will not submit any documents confirming the valid causes of its absence, for example, a sick leave), the letter code "Pr" - absenteeism (lack of workplace without valid reasons);
act of the absence of an employee in the workplace. It should indicate the time of drawing up the act, the person's data that recorded the absence of an employee at the workplace (usually the immediate supervisor of the employee), the absence of an employee at work. Instead of Act, the immediate supervisor of the employee may also draw up a report to the head of the organization's head;
notification letter. He is directed to the home address of the employee in the case of its long absence at work. The notification is asked to appear to work and explain the causes of the absence. The letter must be customized with the notice of delivery. It is better to arrange it on a branded letterhead for the entries of the organization. The letter indicates the period during which the employee should answer (usually a maximum of two weeks). After the postal notification returns, you need to wait for a response. If the answer does not follow, then the act of the absence of explanations signed at least two witnesses.

In addition, since the dismissal in this case is used as a measure of disciplinary recovery, it is necessary to observe the order provided for by Art. 193 Labor Code of the Russian Federation. Namely to the use of disciplinary recovery, the employer must request a written explanation from the employee. If after two working days the specified explanation by the employee is not presented, then the corresponding act is drawn up.

At the same time, the failure to provide an obstacle to the employee is not an obstacle to the use of disciplinary recovery.

In an explanatory employee, the reasons for the absence of at work should state. Employer These reasons analyzes and establishes, respectful or disrespectful they are.

If the reasons are disrespectful, then it is necessary to compile an order to impose a penalty in the form of dismissal for the program. There is no unified form of such an order, so it is compiled in arbitrary form.

With the order on the imposition of recovery in the form of dismissal, the employee should be familiar with the publishing within three working days from the date of his publication, not counting the time of the absence of an employee at work. If the employee refuses to familiarize himself with the specified order for painting, the corresponding act is drawn up (Article 193 of the Labor Code of the Russian Federation).

Dismissal for the appearance of drunk

A gross violation of labor discipline is considered to be the appearance at work in a state of intoxication:

alcohol;
narcotic;
other toxic.

At the same time, it does not matter, a drunk worker appeared at his workplace or on the territory of an employer organization or an object, where, on behalf of the employer, the employee must fulfill the labor function.

In addition, as stated in paragraph 42 of the Resolution of the Supreme Court of the Russian Federation of March 17, 2004 N 2, it does not matter whether the employee has been removed from work due to such a state.

The state of alcohol, narcotic or other toxic intoxication must be confirmed documented. This is usually a medical conclusion.

Dismissal for this violation of labor discipline is a measure of disciplinary recovery. So, for the application of recovery on the basis of Art. 193 of the Labor Code of the Russian Federation at the employee should require a written explanation. If after two working days the specified explanation by the employee is not provided, then the corresponding act is drawn up.

Then an order is compiled (in arbitrary form) on the imposition of recovery in the form of dismissal for the appearance at work in a state of intoxication. With the order of the employee, they get involved in painting within three working days from the date of his publication. If the employee refuses to familiarize himself with the specified order for painting, the corresponding act is drawn up.

Dismissal

The disclosure of secrets protected by law is another gross violation of labor duties. At the same time, the secret refers to the law protected by law:

trade secret. Commercial mystery is a confidentiality mode of information that allows its owner with existing or possible circumstances to increase revenues, avoid unjustified expenses, maintain a position in the market of goods, works, services, or to get other commercial benefits. Information that makes a commercial secret (the secret of production) is any nature (production, technical, economic, organizational, and others), including the results of intellectual activity in the scientific and technical sphere, as well as information on the methods of exercising professional activities. It is important that this information has a valid or potential commercial value due to the uncertainty of their third parties to which third parties have no free access on the legal basis and in relation to which the owner of such information introduced a commercial secrecy regime. Such definitions are given in Art. 3 of the Federal Law of July 29, 2004 N 98-FZ "On Commercial Secret";
state secrecy. That is, the state protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational activities, the dissemination of which can cause damage to Russia's safety. This is stated in Art. 2 of the Law of the Russian Federation of July 21, 1993 N 5485-1 "On State Secret";
other secrecy protected by law (for example, service, banking, tax, etc.).

When dismissing an employee for the disclosure of secrets, it is primarily important that there is proof of the existence of an employee to the information constituting the secret protected by law. Such admission must be issued in the form of a written document, which reflects information, for the disclosure of which the employee may carry disciplinary responsibility in the form of dismissal.

In addition, in paragraph 43 of the Resolution of the Supreme Court of the Russian Federation of March 17, 2004, N 2 states that when terminating the employment contract on this basis, the employer should also submit evidence that:

disclosed information really constitute a secure secret;
the disclosured information became known to the employee in connection with the execution of their employment duties, and he undertakes to disclose them.

Disciplinary recovery in the form of dismissal for this violation is generally superimposed as described in Art. 193 Labor Code of the Russian Federation. It is issued by an order to apply disciplinary recovery in the form of dismissal compiled in arbitrary form. The employee should be familiar with him as a painting or to make an appropriate act in the presence of at least two witnesses about refusal to refuse to familiarize themselves.

Dismissal for theft

An employment contract with an employee can be terminated if the embezzlement (including small) property, waste, intentionally destruction or damage is made at the end of the work. At the same time, the established fact of embezzlement should be confirmed by the court that entered into legal force by the court or by the decision of the judge, the authority, the authorized to consider cases of administrative offenses.

Thus, for dismissal on this basis, it does not have a legal significance that the specified property belonged. It may be owned by the employer, belong to workers or other persons. It is important only to prove the fact that this embezzlement was committed at the place of work. And it is also necessary to have a judge verdict or a judge, an official authorized to consider cases of administrative offenses.

As stated in Art. 193 of the Labor Code of the Russian Federation, disciplinary penalties applied no later than one month from the date of misconduct detection. However, in this case, a monthly period begins to be calculated from the moment when the judgment of a judge, an official, authorized to consider cases of administrative offenses entered into force. This is stated in paragraph 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

For the application of an extreme measure of recovery in the form of dismissal, the corresponding order is published in a general order, with which the employee is acquainted.

Dismissal for violation of labor protection requirements

Another reason for the application of disciplinary recovery in the form of dismissal is a violation of labor protection requirements. In this case, two conditions must be performed:

violation was established by the Commission on Labor Protection or Obligated Obligator;
the violation led to serious consequences (an accident at work, an accident, catastrophe) or knowingly created a real threat to the onset of such consequences.

When considering a dispute in court, the employer must prove that these consequences were the result of a violation by the worker of labor protection requirements. If there were no such consequences, but there was a certain threat to their offensive, the fact that these consequences could come precisely because of the violation of the worker of labor protection claims, the employer should also prove.

note! Rules for labor protection are established by Art. Art. 219 - 231 Labor Code of the Russian Federation, as well as other regulatory legal acts, including labor protection instructions. The labor protection commission is created in the organization in the manner prescribed by Art. 218 Labor Code of the Russian Federation.

For the use of an extreme measure of recovery in the form of dismissal in this case, the corresponding order is published in general, with which the employee is acquainted with a painting.

Registration of dismissal and payments to employees with a single rude violation of labor duties in Art. 193 of the Labor Code of the Russian Federation states that the employer is obliged to issue an imposition of penalties, including in the form of dismissal, by issuing an order. In turn, in Art. 84.1 The Labor Code of the Russian Federation states that the termination of the employment contract is issued by order of dismissal. Any provisions indicating that the two of these order can be combined into one or replaced by each other, there is no legislation. Therefore, two separate above orders should be made. In a letter of Rostrud dated June 1, 2011 N 1493-6-1 confirmed that in this situation the publication of two orders is not a violation of labor legislation.

Thus, the design of the termination of the employment contract is carried out in general. Namely, in the order of dismissal in the form of N T-8 in the column "The foundation (document, number, date)" of the order of dismissal indicates the details of the order of the application of disciplinary recovery in the form of dismissal. In the column "The basis of termination (termination) of the employment contract (dismissal)" indicate one of the following grounds:

in connection with a single gross violation by an employee of labor duties (skid) on the basis of PP. "A" p. 6 h. 1 Art. 81 of the Labor Code of the Russian Federation;
in connection with a single gross violation by the employee of labor duties - the appearance at work in a state of alcoholic, narcotic or toxic intoxication (it should be specifically specifically, in what state the employee was noticed) on the grounds of PP. "B" n. 6 h. 1 Art. 81 of the Labor Code of the Russian Federation;
in connection with a single gross violation by the employee of employment duties - the disclosure of the employee protected by the law of secrets (state, commercial, official, other, other, it should be indicated), which became a well-known employee in connection with the execution of labor duties, or personal data of another employee on the basis of PP. "In" p. 6 h. 1 tbsp. 81 of the Labor Code of the Russian Federation;
in connection with a one-time gross violation by the employee of labor duties - the embezzlement of the embezzlement, waste, destruction or damage to property (specifically, specifically, which violation occurred) on the basis of PP. "G" n. 6 h. 1 Art. 81 of the Labor Code of the Russian Federation;
in connection with a single gross violation by an employee of labor duties - a violation by the employee of labor protection claims, which entailed serious consequences or knowingly created a real threat to their occurrence, on the basis of PP. "D" p. 6 h. 1 Art. 81 Labor Code of the Russian Federation.

The date of termination of the employment contract specified in the order and the employment record will be the last day of the employee.

One of the similar records is made to the employee's labor book and the employee's personal card form in form N T-2.

It should be remembered that on the basis of the norms of Art. 81 Labor Code of the Russian Federation Termination of the contract for this basis is impossible during the period of temporary disability and stay on the holiday of employee.

On the day of termination of the employment contract, the employer is obliged to settle with a salary employee, as well as to pay compensation for unused days of leave (if available). If the employee did not work on this day, then the corresponding amounts are paid no later than the next day after presentation by the dismissed employee claims on the calculation. In the event of a dispute about the size of the specified amounts, the employer is obliged to pay the amount not disputed by the employee. Such an order follows from the provisions of Art. 140 of the Labor Code of the Russian Federation.